Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except: (i) Indebtedness created under the Loan Documents; (ii) (1) Indebtedness existing on the Effective Date and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replaced; (iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement; (iv) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary, provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent; (v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations; (A) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date; (vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 at any time outstanding; (viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstanding; (ix) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business; (x) 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 other Indebtedness), in each case provided in the ordinary course of business; (xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.; (xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a); (xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and (xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness. (b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding. (c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amount.
Appears in 2 contracts
Samples: Credit Agreement (Morgans Hotel Group Co.), Credit Agreement (Morgans Hotel Group Co.)
Indebtedness; Certain Equity Securities. (a) The Borrower Issuer will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created hereunder or under the Loan other Transaction Documents, Revolver Obligations and Indebtedness evidenced by the Italian Notes;
(ii) (1) Indebtedness existing on the Effective Issue Date or incurred pursuant to contractual loan commitments existing on the Issue Date and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), 6.01 and (3) extensions, renewals renewals, refinancings and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall do not be Indebtedness of an obligor that was not an obligor with respect to increase the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a outstanding principal amount that exceeds the principal amount of the Indebtedness being extended, renewed thereof or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have result in an earlier maturity date or shorter decreased weighted average life than the Indebtedness being extended, renewed or replacedthereof;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower Issuer to any Subsidiary and of any Subsidiary to the Borrower Issuer or any other Subsidiary, provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent;
(viv) Guarantees by the Borrower of Indebtedness of any Subsidiary Issuer and by any Subsidiary of Indebtedness of the Borrower Issuer or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower Issuer or any Subsidiary that is a Loan Party Pledgor and Guarantor of Indebtedness of any Subsidiary that is not a Loan Party Pledgor and Guarantor shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations6.04;
(Av) Indebtedness of the Borrower Issuer or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals renewals, refinancings and replacements of any such Indebtedness so long as that do not increase the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon)thereof, provided that the aggregate principal amount of Indebtedness permitted by this clause (viiv) shall not exceed $5,000,000 at any time outstanding;
(vi) Indebtedness of the Issuer or any Subsidiary in respect of workers' compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion guarantees provided by the Issuer and the Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers' compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vii) In each case with any consent required under the Revolving Loan Documentation (but only for so long as such Revolving Loan Documentation is in effect), Indebtedness in respect of a Permitted Receivables Financing, provided that the Net Proceeds resulting from the sale, transfer or other disposition of Receivables in connection with such Permitted Receivables Financing are applied in accordance with Section 4.01;
(viii) Indebtedness of the Issuer or any Subsidiary that was (A) Indebtedness of any other Person existing at the time such other Person was merged with or became a Guarantee by Subsidiary, including Indebtedness incurred in connection with, or in contemplation of, such other Person's merging with or becoming a Subsidiary, and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the Borrower outstanding principal amount thereof (or commitments therefor) or result in an earlier maturity date or decreased weighted average life thereof, provided that the aggregate principal amount of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(Aviii) shall be subordinated to not exceed $5,000,000 at any time outstanding;
(ix) non-interest bearing Indebtedness not for borrowed money, in the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and nature of customer deposits; and
(Bx) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
(ix) , provided that the aggregate principal amount of Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
Subsidiaries that are not Pledgors and Guarantors permitted by this clause (x) 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 other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) 5,000,000 at any time outstanding.
(cb) Neither Holdings nor the Borrower willThe Issuer will not, nor and will they not permit any Subsidiary to, issue any preferred stock or permit to remain outstanding any other preferred Equity Interests, except that (i) the Issuer may issue the Cumulative Preferred Stock; (ii) the Issuer may issue preferred stock or other preferred Equity Interests except in of the case Issuer that do not require mandatory cash dividends or redemptions and do not provide for any right on the part of Holdings the holder to require redemption, repurchase or the Borrower (orrepayment thereof, in each case prior to the case of date that is 180 days after the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at Stated Maturity and (iii) the Issuer or any time outstanding; provided that Subsidiary may issue directors' qualifying shares or shares required by applicable law to be held by a Person other than the Issuer or any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amountSubsidiary.
Appears in 2 contracts
Samples: Indenture (Memc Electronic Materials Inc), Indenture (Memc Electronic Materials Inc)
Indebtedness; Certain Equity Securities. (a) The Borrower Issuer will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created hereunder, under the other Transaction Documents or under the Revolving Loan DocumentsDocumentation and Indebtedness evidenced by the Italian Notes;
(ii) (1) Indebtedness existing on the Effective Issue Date or incurred pursuant to contractual loan commitments existing on the Issue Date and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), 6.01 and (3) extensions, renewals renewals, refinancings and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall do not be Indebtedness of an obligor that was not an obligor with respect to increase the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a outstanding principal amount that exceeds the principal amount of the Indebtedness being extended, renewed thereof or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have result in an earlier maturity date or shorter decreased weighted average life than the Indebtedness being extended, renewed or replacedthereof;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower Issuer to any Subsidiary and of any Subsidiary to the Borrower Issuer or any other Subsidiary, provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent;
(viv) Guarantees by the Borrower of Indebtedness of any Subsidiary Issuer and by any Subsidiary of Indebtedness of the Borrower Issuer or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower Issuer or any Subsidiary that is a Loan Party Pledgor and Guarantor of Indebtedness of any Subsidiary that is not a Loan Party Pledgor and Guarantor shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations6.04;
(Av) Indebtedness of the Borrower Issuer or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals renewals, refinancings and replacements of any such Indebtedness so long as that do not increase the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon)thereof, provided that the aggregate principal amount of Indebtedness permitted by this clause (viiv) shall not exceed $5,000,000 at any time outstanding;
(vi) Indebtedness of the Issuer or any Subsidiary in respect of workers' compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion guarantees provided by the Issuer and the Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers' compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vii) In each case with any consent required under the Revolving Loan Documentation (but only for so long as such Revolving Loan Documentation is in effect), Indebtedness in respect of a Permitted Receivables Financing, provided that the Net Proceeds resulting from the sale, transfer or other disposition of Receivables in connection with such Permitted Receivables Financing are applied in accordance with Section 4.01;
(viii) Indebtedness of the Issuer or any Subsidiary that was (A) Indebtedness of any other Person existing at the time such other Person was merged with or became a Guarantee by Subsidiary, including Indebtedness incurred in connection with, or in contemplation of, such other Person's merging with or becoming a Subsidiary, and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the Borrower outstanding principal amount thereof (or commitments therefor) or result in an earlier maturity date or decreased weighted average life thereof, provided that the aggregate principal amount of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(Aviii) shall be subordinated to not exceed $5,000,000 at any time outstanding;
(ix) non-interest bearing Indebtedness not for borrowed money, in the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and nature of customer deposits; and
(Bx) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
(ix) , provided that the aggregate principal amount of Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
Subsidiaries that are not Pledgors and Guarantors permitted by this clause (x) 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 other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) 5,000,000 at any time outstanding.
(cb) Neither Holdings nor the Borrower willThe Issuer will not, nor and will they not permit any Subsidiary to, issue any preferred stock or permit to remain outstanding any other preferred Equity Interests, except that (i) the Issuer may issue the Cumulative Preferred Stock; (ii) the Issuer may issue preferred stock or other preferred Equity Interests except in of the case Issuer that do not require mandatory cash dividends or redemptions and do not provide for any right on the part of Holdings the holder to require redemption, repurchase or the Borrower (orrepayment thereof, in each case prior to the case of date that is 180 days after the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at Stated Maturity and (iii) the Issuer or any time outstanding; provided that Subsidiary may issue directors' qualifying shares or shares required by applicable law to be held by a Person other than the Issuer or any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amountSubsidiary.
Appears in 2 contracts
Samples: Indenture (Memc Electronic Materials Inc), Indenture (Memc Electronic Materials Inc)
Indebtedness; Certain Equity Securities. (a) The None of Holdings, the Borrower or any other Subsidiary will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1) Indebtedness existing on the Effective Date date hereof and set forth on Schedule 6.01 and Refinancing Indebtedness in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replacedthereof;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to Holdings, the Borrower or any other Subsidiary, ; provided that (A) any such Indebtedness owing by any Loan Party shall be unsecured and, to the extent the aggregate principal amount of all such Indebtedness owing by any Loan Party to Holdings or any Subsidiary exceeds $1,000,000, shall be subordinated in right of payment to the Loan Document Obligations on terms customary for intercompany subordinated Indebtedness, as reasonably determined by the Administrative Agent, (B) any such Indebtedness owing to any Loan Party shall be evidenced by a promissory note (which can be a master promissory note) that shall have been pledged pursuant to the Collateral Agreement and (C) any such Indebtedness of owing by any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to incurred in compliance with Section 10.4. and 6.04;
(Biv) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the AgentGuarantees incurred in compliance with Section 6.04;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that Subsidiary (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
(A) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction construction, repair, replacement or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereofObligations, provided that such Indebtedness is incurred prior to or within 90 270 days after such acquisition or the completion of such construction construction, repair, replacement or improvementimprovement or (B) assumed in connection with the acquisition of any fixed or capital assets, and Refinancing Indebtedness in respect of any of the foregoing; provided that the aggregate principal amount of Indebtedness permitted by this clause (v) shall not exceed $1,000,000 at any time outstanding;
(vi) Indebtedness (other than Indebtedness under credit facilities or capital markets Indebtedness) of any Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Subsidiary in a transaction permitted hereunder) after the date hereof, or Indebtedness (other than Indebtedness under credit facilities or capital markets Indebtedness) of any Person that is assumed by the Borrower or any Subsidiary in connection with an acquisition of assets in a Permitted Acquisition or other acquisition permitted hereunder, provided that (A) such Indebtedness exists at the time such Person becomes a Subsidiary (or is so merged or consolidated) or such assets are acquired and is not created in contemplation of or in connection with such Person becoming a Subsidiary (or such merger or consolidation) or such assets being acquired and (B) extensionsneither the Borrower nor any Subsidiary (other than such Person or the Subsidiary with which such Person is merged or consolidated or the Person that so assumes such Person’s Indebtedness) shall Guarantee or otherwise become liable for the payment of such Indebtedness, renewals and replacements Refinancing Indebtedness in respect of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon)foregoing; provided, however, provided that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 500,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of Foreign Subsidiaries in an aggregate principal amount not in excess of $15,000,000 at any Person that becomes a Subsidiary after October 6time outstanding;
(viii) Indebtedness owed in respect of any overdrafts and related liabilities arising from treasury, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary depository and was not created in contemplation of cash management services or in connection with such Person becoming any automated clearing-house transfers of funds;
(ix) Indebtedness in respect of letters of credit, bank guarantees and similar instruments issued for the account of Holdings or any Subsidiary in the ordinary course of business supporting obligations under (A) workers’ compensation, health, disability or other employee benefits, casualty or liability insurance, unemployment insurance and other social security laws and (B) bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and obligations of a Subsidiarylike nature;
(x) Indebtedness of Holdings, the Borrower or any other Subsidiary in the form of purchase price adjustments, indemnification obligations, earn-outs, non-competition agreements or other arrangements representing acquisition consideration or deferred payments of a similar nature incurred in connection with any Permitted Acquisition or other Investment permitted by Section 6.04;
(xi) Permitted Unsecured Indebtedness, provided that, (x) immediately prior to and extensionsimmediately after giving effect to the incurrence thereof, renewals no Default or Event of Default shall have occurred and replacements of be continuing and (y) immediately after giving effect to the incurrence thereof and any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal application of the proceeds thereof, the Leverage Ratio, calculated on a Pro Forma Basis as of the most recent Test Period for which financial statements are available, is not in excess of a ratio 0.25 less than the Leverage Ratio then applicable for such Test Period under Section 6.12;
(xii) other Indebtedness being extended, renewed of the Borrower or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the Subsidiary Loan Party in an aggregate principal amount of Indebtedness permitted by this clause (vii) shall not to exceed $5,000,000 at any time outstanding;
(viiixiii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness consisting of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
(ix) Indebtedness owed to any Person (including obligations in respect financing of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred insurance premiums in the ordinary course of business;
(x) 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 other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (i) through (xiii) above. Notwithstanding anything to the Borrower or contrary set forth above, if any Subsidiary of: (A) Indebtedness incurred pursuant to this Section 6.01 is denominated in a foreign currency, no fluctuation in currency following the incurrence of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are shall result in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement a breach of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtednessthis Section 6.01.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower willnot, nor will they it permit any Domestic Subsidiary (or any direct Foreign Subsidiary of a Domestic Subsidiary) to, issue or permit to remain outstanding any Preferred preferred Equity Interests Interests, except (A) in the case of Holdings or the Borrower (orHoldings, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred preferred Equity Interests that are Qualified Equity Interests, (B) in the case of any Domestic Subsidiary, preferred Equity Interests issued to and held by the Borrower or any other Domestic Subsidiary (and, in an aggregate principal amount not exceeding $150,000,000 at the case of any time outstanding; provided that any such Preferred preferred Equity Interests issued by any Subsidiary Loan Party, such preferred Equity Interests shall be held by the Borrower to Holdings for purposes or a Subsidiary Loan Party and the Collateral and Guarantee Requirement shall be satisfied with respect thereto within the times required thereby) and (C) in the case of matching Preferred any direct Foreign Subsidiary of a Domestic Subsidiary, preferred Equity Interests issued to and held by the Borrower, any other Domestic Subsidiary or any direct Foreign Subsidiary of a Domestic Subsidiary. Neither Holdings shall be excluded from nor any Subsidiary will issue or permit to exist any Disqualified Equity Interests except for Disqualified Equity Interests existing on the calculation of such amountdate hereof and set forth on Schedule 6.01.
Appears in 2 contracts
Samples: Credit Agreement (SVMK Inc.), Credit Agreement (SVMK Inc.)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1) Indebtedness existing on the Effective Date permitted to be outstanding under the Reorganization Plan and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), 6.01 and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall do not be Indebtedness of an obligor that was not an obligor with respect to increase the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a outstanding principal amount that exceeds the principal amount of the Indebtedness being extended, renewed thereof or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have result in an earlier maturity date or shorter decreased weighted average life than the Indebtedness being extended, renewed or replacedthereof;
(iii) Additional Mortgage Indebtedness and extensionssubject to Section 6.04, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower or any other Restricted Subsidiary, provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent;
(viv) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Restricted Subsidiary of Indebtedness of the Borrower or any other Subsidiary, ; provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Restricted Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. 6.04 and (CB) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable a Restricted Subsidiary that is not a Loan Party shall not Guarantee any Indebtedness of any Loan Party unless otherwise permitted pursuant to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligationsanother clause of this Section 6.01(a);
(Av) Indebtedness of the Borrower or any Restricted Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereofin each case, provided that such Indebtedness is incurred prior to or within 90 180 days after such acquisition the acquisition, construction or the completion improvement of such construction or improvementassets, and (B) extensions, renewals and replacements of any such Indebtedness so long as that do not increase the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon)thereof; provided, however, provided that the aggregate principal amount of Indebtedness permitted by this clause (viv) at any time outstanding shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date15,000,000;
(viivi) Indebtedness of any Person that becomes a Restricted Subsidiary after October 6the Effective Date and extensions, 2006 but prior to renewals and replacements of any such Indebtedness that do not increase the Fifth Amendment Effective Date, outstanding principal amount thereof; provided that such Indebtedness exists at the time such Person becomes a Restricted Subsidiary and was is not created in contemplation of or in connection with such Person becoming a Restricted Subsidiary, ;
(vii) the Senior Secured Notes and extensions, renewals the Second Lien Notes and replacements of any such Permitted Refinancing Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus incurred to refinance any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by under this clause (vii) shall not exceed $5,000,000 at any time outstanding);
(viii) (A) a Guarantee obligations in respect of performance, bid, appeal and surety bonds and completion guarantees provided by the Borrower or any of its Restricted Subsidiaries in the ordinary course of business;
(ix) Indebtedness in respect of Holdings permitted under Section 10.1.(b)(iii), provided earn-outs relating to Permitted Acquisitions that are based on the Guarantee permitted under this clause income of the assets acquired in such Permitted Acquisition after the consummation thereof;
(viii)(Ax) shall be subordinated Indebtedness to the Obligations to the same extent and on the same terms as the seller in respect of any Permitted Acquisition; provided such Indebtedness so Guaranteed is subordinated to the Obligations and on terms satisfactory to the Administrative Agent;
(Bxi) Indebtedness under Hedging Agreements, other than those entered into for speculative purposes;
(xii) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 25,000,000 at any time outstanding;
(ixxiii) Indebtedness owed incurred by the Borrower or any of its Restricted Subsidiaries constituting reimbursement obligations with respect to any Person (letters of credit issued in the ordinary course of business, including obligations letters of credit in respect of workers’ compensation claims, or other Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims; provided, however, that such letters of credit are not drawn;
(xiv) Indebtedness arising from agreements of the Borrower or its Restricted Subsidiaries providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or a Subsidiary , other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets, or a Subsidiary for the benefit purpose of financing such acquisition; provided, however, that the maximum assumable liability in respect of all such Indebtedness shall at no time exceed the gross proceeds including non-cash proceeds (the fair market value of such Personnon-cash proceeds being measured at the time received and without giving effect to any subsequent changes in value) providing workers’ compensation, health, disability actually received by the Borrower and its Restricted Subsidiaries in connection with such disposition;
(xv) Indebtedness arising from the honoring by a bank or other employee benefits financial institution of a check, draft or property, casualty similar instrument drawn against insufficient funds in the ordinary course of business; provided that such Indebtedness is extinguished within two Business Days of its incurrence;
(xvi) Indebtedness of the Borrower or liability insurance, pursuant to reimbursement any of its Restricted Subsidiaries consisting of (x) the financing of insurance premiums or indemnification (y) take-or-pay obligations to such Personcontained in supply arrangements, in each case incurred in the ordinary course of business;
(xxvii) Indebtedness consisting of Indebtedness issued by the Borrower or any of the Restricted Subsidiaries to current or former officers, directors and employees thereof, their respective estates, spouses or former spouses, in each case to finance the purchase or redemption of Equity Interests of the Borrower or any Subsidiary a Restricted Subsidiary;
(xviii) customer deposits and advance payments received in respect the ordinary course of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations (other than in respect of other Indebtedness), in each case provided business from customers for goods purchased in the ordinary course of business;
(xixix) Indebtedness owed on a short term basis of no longer than 30 days to banks and other financial institutions incurred in respect the ordinary course of Swap Agreements permitted by Section 10.6.business of the Borrower and the Restricted Subsidiaries with such banks or financial institutions that arises in connection with ordinary banking arrangements to manage cash balances of the Borrower and the Restricted Subsidiaries;
(xiixx) Capital Lease Obligations all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (i) through (xix) above and clause (xxi) below; and
(xxi) additional unsecured Indebtedness of the Borrower or any Subsidiary that are incurred prior to Restricted Subsidiary, if the Fifth Amendment Effective Date and result from any arrangement whereby Consolidated Leverage Ratio on a consolidated basis for the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in and its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use Restricted Subsidiaries’ most recently ended four fiscal quarters for substantially the same purpose or purposes as the property sold or transferred if, on which internal financial statements are available immediately preceding the date of on which such incurrence on a Pro Forma Basisadditional Indebtedness is incurred would have been less than 4.50 to 1.00; provided that, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiiix) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except that may be incurred by an amount Restricted Subsidiaries that are not Subsidiary Loan Parties under this clause (xxi) shall not exceed $10,000,000 at any one time outstanding and (y) such Indebtedness (i) has a final maturity date 91 days after the Maturity Date and (ii) has a Weighted Average Life to Maturity equal to any accrued but unpaid interest and redemption premium on such Indebtednessor greater than the Weighted Average Life to Maturity of the Loans.
(b) Holdings The Borrower will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower willnot, nor will they it permit any Restricted Subsidiary to, issue any preferred stock or permit to remain outstanding any Preferred other preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests other than (A) preferred stock issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests that is not Disqualified Stock or (B) preferred stock that is issued by Holdings shall be excluded from any Restricted Subsidiary to the calculation of such amountBorrower or a Subsidiary Loan Party that is not Disqualified Stock).
Appears in 2 contracts
Samples: Revolving Credit Agreement (Ami Celebrity Publications, LLC), Revolving Credit Agreement (Ami Celebrity Publications, LLC)
Indebtedness; Certain Equity Securities. (a) The Borrower Loan Parties will not, and will not permit any Subsidiary of their Subsidiaries to, directly or indirectly, create, incur, assume or permit to exist (including by way of Guarantee) any IndebtednessIndebtedness or enter into any Hedging Agreement, except:
(i) Indebtedness created incurred and outstanding under the Loan Documents;
(ii) (1A) Indebtedness existing on the Effective Date and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), Loan Parties incurred and (3) extensions, renewals outstanding under the Subordinated Notes in an aggregate principal amount not to exceed $190.0 million and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) any Permitted Refinancing thereof; provided that in the case of clause (B) only, (x) no Default or Event of Default shall not have occurred or be continuing or would result therefrom and (y) after giving effect to the incurrence of such Indebtedness (and any other Indebtedness incurred since the last day of the immediately preceding Test Period) on a pro forma basis as if it were incurred on the first day of the immediately preceding Test Period (but tested as if the applicable ratio were the ratio for the next succeeding Test Period), the Borrower would be in a principal amount that exceeds compliance with the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replacedFinancial Covenants;
(iii) Additional Mortgage Indebtedness to Remain Outstanding (not including any Indebtedness of any Non-U.S. Subsidiary permitted by Section 6.01(vii) or (viii) below) and extensions, renewals and replacements any Permitted Refinancing thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary, provided (Ax) that Indebtedness of any Subsidiary that is not a Loan Party (other than the Parent Guarantor) to the Borrower or any Subsidiary that is a other Loan Party shall be subject to Section 10.4. and (Bother than the Parent Guarantor), or (y) Indebtedness of the Borrower any Non-U.S. Subsidiary to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the AgentNon-U.S. Subsidiary;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary Loan Party and by any Subsidiary Loan Party of Indebtedness of the Borrower or any other SubsidiarySubsidiary Loan Party, provided that (A) in each case, to the extent such Indebtedness so Guaranteed was permitted to be incurred hereunder, and if such Indebtedness is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations under the Loan Documents, such Guarantee is as subordinated in right of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated payment to the Obligations;
(vi) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided that such Indebtedness is extinguished within five Business Days of its incurrence;
(vii) Indebtedness in an aggregate principal amount outstanding at any time not in excess of (A) $30.0 million (or the equivalent thereof in any currency) of any Subsidiary (other than the South Korean Subsidiary and any IP Group Member), and (B) $30.0 million (or the equivalent thereof in South Korean won or any other currency) of the South Korean Subsidiary and; provided that, in each case, (x) no Default or Event of Default shall have occurred or be continuing or would result therefrom and (y) after giving effect to the incurrence of such Indebtedness (and any other Indebtedness incurred since the last day of the immediately preceding Test Period) on a pro forma basis as if it were incurred on the first day of the immediately preceding Test Period, the Borrower would be in compliance with the Financial Covenants; provided, further, that no Indebtedness not outstanding prior to the Effective Date may be incurred pursuant to this provision by the issuer of any Equity Interests set forth on Schedule 5.18(a) in respect of which the matters set forth in Section 5.18(a) shall not have been completed, or any direct or indirect parent of any such issuer other than the Borrower;
(viii) Indebtedness of (A) any Non-U.S. Subsidiary to any Loan Party in an aggregate principal amount outstanding for all Non-U.S. Subsidiaries at any time not in excess of $40.0 million; provided that any such Indebtedness shall be evidenced by a Qualified Non-U.S. Intercompany Note and (B) any Loan Party to any Non-U.S. Subsidiary which must be subordinated to the Obligations as set forth in Section 5.17;
(ix) Indebtedness of the Borrower or any Subsidiary (other than any IP Group Member) incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and Permitted Refinancing thereof; provided that (A) such Indebtedness is incurred prior to or within 90 180 days after such acquisition or the completion of such construction or improvement, improvement and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (viix) shall not exceed $5,000,000 10.0 million at any time outstanding; provided, and any further, that no Indebtedness permitted by this clause (vi) that is incurred on or after not outstanding prior to the Fifth Amendment Effective Date may be incurred pursuant to this provision by the issuer of any Equity Interests set forth on Schedule 5.18(a) in respect of which the matters set forth in Section 5.18(a) shall not be used to finance have been completed, or any direct or indirect parent of any such issuer other than the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective DateBorrower;
(viix) Indebtedness of Hedging Agreements incurred by any Person that becomes a Subsidiary after October 6, 2006 but prior to (other than any IP Group Member) entered into in the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary ordinary course of business and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 at any time outstandingfor speculative purposes;
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
(ixxi) Indebtedness incurred by any Person (other than any IP Group Member) owed to any Person (including obligations in respect of letters of credit for the benefit of such Personof) any Person providing workers’ worker's compensation, health, disability or other employee benefits or property, casualty or liability insuranceinsurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(xxii) Indebtedness of the Borrower or any Subsidiary of its Subsidiaries (other than any IP Group Member) in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees bonds and similar obligations (other than in respect and trade-related letters of other Indebtedness)credit, in each case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(xixiii) Indebtedness in respect of Swap Agreements permitted incurred by Section 10.6.;
any Person (xiiother than any IP Group Member) Capital Lease Obligations arising from agreements of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby of the Borrower (other than the IP Subsidiary) providing for indemnification, adjustment of purchase price or such Subsidiary sells similar obligations, in each case, incurred or transfers assumed in connection with the acquisition or disposition of any property, real or personal, used or useful in its business, whether now owned assets or hereafter acquireda Subsidiary, and thereafter rents other than Guarantees of Indebtedness incurred by any Person acquiring all or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date any portion of such incurrence on business, assets or a Pro Forma Basis, Subsidiary for the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a)purpose of financing such acquisition;
(xiiixiv) (A) Guarantees and/or indemnities obligations incurred by any Person (other than any IP Group Member) in respect of payment of principal or interest) performance and surety bonds and completion guarantees provided by the Borrower or any Subsidiary of the Borrower (other than any IP Group Member) in respect the ordinary course of capital contributions, project completions and cost-overruns and business;
(xv) Indebtedness incurred by any Person (other performance matters and (Bthan any IP Group Member) Guarantees and/or indemnities in respect existing at the time such Person becomes a Subsidiary of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case the Borrower in connection with investments or Indebtedness otherwise an acquisition permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a SubsidiarySection 6.04, provided that such Guarantee and but only if such Indebtedness are was not created or incurred in effect prior to the Fifth Amendment Effective Date or (B) contemplation of such Person becoming a Subsidiary and any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstandingPermitted Refinancing thereof; provided that any such Preferred Equity Interests issued by (x) no Default or Event of Default shall have occurred or be continuing or would result therefrom and (y) after giving effect to the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation incurrence of such amount.Indebtedness (and any other Indebtedness incurred since the last day of the immediately preceding Test Period) on a pro forma basis as if it was incurred on the first day of the immediately preceding Test Period, the Loan Parties would be in compliance with the Financial Covenants;
Appears in 2 contracts
Samples: Credit Agreement (Seminis Inc), Credit Agreement (Seminis Inc)
Indebtedness; Certain Equity Securities. (a) The ---------------------------------------- Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) the Subordinated Notes and Guarantees of such Subordinated Notes pursuant to the terms thereof;
(1iii) Indebtedness existing on the Effective Date date hereof and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), 6.01 and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall do not be Indebtedness of an obligor that was not an obligor with respect to increase the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a outstanding principal amount that exceeds the principal amount of the Indebtedness being extended, renewed thereof or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have result in an earlier maturity date or shorter decreased weighted average life than the Indebtedness being extended, renewed or replaced;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary, ; provided (A) that -------- Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent6.04;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, ; provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of -------- Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations6.04;
(Avi) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, ; provided that -------- (A) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, improvement and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 2,000,000 at any time outstanding, and extensions, renewals and replacements of any such Indebtedness permitted by this clause (vi) that is incurred on or after do not increase the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Dateoutstanding principal amount thereof;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, date hereof; provided that (A) such Indebtedness exists at the time such -------- Person becomes a Subsidiary and was is not created in contemplation of or in connection with such Person becoming a Subsidiary, Subsidiary and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that B) the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 at any time outstanding, and extensions, renewals and replacements of any such Indebtedness that do not increase the principal amount thereof;
(viii) Sponsor Capital Contributions;
(Aix) a Guarantee by Indebtedness to sellers or their Affiliates in connection with Permitted Acquisitions provided that such Indebtedness is subordinated on terms satisfactory to the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided Administrative Agent (including that the Guarantee permitted under this clause (viii)(A) stated maturity thereof shall be subordinated later than 10 years from the Effective Date and that no portion thereof shall be subject to mandatory cash payments of any kind (whether of principal, interest, dividends, capital or otherwise) until the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and have been repaid in full); and
(Bx) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 7,500,000 at any time outstanding;
(ix) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(x) 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 other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Redeemable Preferred Stock or any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) Documents and (xiii) and (iii) Indebtedness in respect of its subordinated guarantee of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstandingSubordinated Notes.
(c) Neither The Borrower will not, nor will it permit any Subsidiary to, issue any preferred stock, and neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue be or permit become liable in respect of any obligation (contingent or otherwise) to remain outstanding purchase, redeem, retire, acquire or make any Preferred Equity Interests except other payment (other than dividends permitted under Section 6.07) in the case respect of Holdings or any shares of capital stock of Holdings, the Borrower or any Subsidiary or any option, warrant or other right to acquire any such shares of capital stock; provided, however, that nothing in this Section 6.01(c) shall prevent (or, in i) the case Borrower or any Subsidiary of the Trust Preferred SecuritiesBorrower from acquiring the equity securities of any Subsidiary not owned by it if such purchase is otherwise permitted by this Agreement, MHG Capital Trust I(ii) any Subsidiary from issuing preferred stock to the Borrower, so long as such preferred stock is pledged to the Collateral Agent to secure the Obligations, to the extent required by the Loan Documents, or (iii) any Subsidiary from issuing preferred stock to any third party, provided that -------- for purposes of Section 6.01(a), Preferred Equity Interests that are Qualified Equity Interests in such preferred stock shall be deemed to be Indebtedness of such Subsidiary with an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by equal to the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amountstated value thereof.
Appears in 2 contracts
Samples: Credit Agreement (Eagle Family Foods Inc), Credit Agreement (Eagle Family Foods Inc)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) Indebtedness of the Loan Parties in respect of the New Notes and the Assumed Valor Bonds;
(1iii) Indebtedness of AC Holdings and any of its subsidiaries that are Loan Parties in respect of the AC Holdings Bonds; and Indebtedness of Alltel Georgia in respect of the Alltel Xxxxxxx Xxxxx;
(iv) Indebtedness (other than Indebtedness permitted under clause (ii) or (iii) of this paragraph (a)) existing on the Effective Date and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replaced6.01;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(ivv) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary, ; provided that (A) that any such Indebtedness of any Subsidiary that is not a Loan Collateral Support Party to the Borrower or any Subsidiary that is a Loan Collateral Support Party shall be subject to Section 10.4. and 6.04, (B) Indebtedness of except to the Borrower to extent any Subsidiary Regulatory Authorization would be required therefor and has not been obtained, any such Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party Guarantor shall be subordinated to the Facility Obligations on terms reasonably satisfactory to the Administrative Agent, and (C) any such Indebtedness owed to any Loan Party and evidenced by a promissory note shall be pledged pursuant to clause (b) of the definition of “Collateral and Guarantee Requirement”;
(vvi) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other SubsidiarySubsidiary (other than Indebtedness permitted solely pursuant to clauses (a)(iii) (except for Guarantees of the AC Holdings Bonds by any of its subsidiaries that is a Loan Party to the extent required under the AC Holdings Indenture as in effect on the date hereof), (a)(iv), (a)(viii) or (a)(xx) or any combination thereof); provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Collateral Support Party of Indebtedness of any Subsidiary that is not a Loan Collateral Support Party shall be subject to Section 10.4. and 6.04, (CB) Guarantees permitted under this clause (vvi) shall be subordinated to the Secured Obligations of the applicable Subsidiary that is a Loan Party if and to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the ObligationsSecured Obligations and (C) no Indebtedness shall be Guaranteed by any Subsidiary unless such Subsidiary is a Loan Party that has Guaranteed the Secured Obligations pursuant to the Guarantee Agreement;
(Avii) Indebtedness of the Borrower or any Subsidiary Wireline Company incurred to finance the acquisition, construction construction, restoration or improvement of any fixed or capital assets, including Capital Lease Obligations (whether through the direct acquisition of such assets or the acquisition of Equity Interests in a Person holding only such fixed or capital assets) and any Indebtedness assumed by the Borrower or any Subsidiary Wireline Company in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, ; provided that (A) such Indebtedness is incurred (or if assumed, was incurred) prior to or within 90 150 days after such acquisition or the completion of such construction construction, restoration or improvement, improvement and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 250,000,000 at any time outstanding;
(viii) Indebtedness of any Person that becomes a Subsidiary after the Effective Date; provided that (A) such Indebtedness exists at the time such Person becomes a Guarantee by the Borrower Subsidiary and is not created in contemplation of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations or in connection with such Person becoming a Subsidiary and (B) other unsecured the Borrower is in compliance on a Pro Forma Basis after giving effect to such Indebtedness with the covenants contained in Sections 6.14 and 6.15 recomputed as of the Borrower or any Subsidiary incurred last day of the most-recently ended Fiscal Quarter prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 time at any time outstandingwhich such Person becomes a Subsidiary;
(ix) Indebtedness owed to of the Borrower assumed by operation of law or otherwise as a direct result of the merger of any Person (including a “Merged Person”) with and into the Borrower (with the Borrower being the surviving entity) in a transaction otherwise permitted under this Amended Agreement; provided that (A) such Indebtedness was Indebtedness of the Merged Person as of the effectiveness of such merger and is not created in contemplation of or in connection with such merger and (B) the Borrower is in compliance on a Pro Forma Basis after giving effect to such Indebtedness with the covenants contained in Sections 6.14 and 6.15 recomputed as of the last day of the most-recently ended Fiscal Quarter prior to the time of such merger;
(x) Indebtedness of any Wireline Company constituting reimbursement obligations with respect to letters of credit in respect of workers’ compensation claims or self-insurance obligations;
(xi) Indebtedness of any Wireline Company constituting reimbursement obligations with respect to letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred issued in the ordinary course of business; provided that, upon the drawing of such letters of credit or the incurrence of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or incurrence;
(xxii) 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 other IndebtednessIndebtedness for borrowed money), in each case provided in the ordinary course of business;
(xixiii) Indebtedness in respect of Swap Agreements permitted by Section 10.6.6.07;
(xiixiv) Capital Lease Obligations Indebtedness of any Wireline Company arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided, however, that such Indebtedness is extinguished within five Business Days of its incurrence;
(xv) Indebtedness of any Wireline Company arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of any Wireline Company pursuant to any such agreements, in any case incurred in connection with the disposition of any business, assets or any Subsidiary (other than Guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Subsidiary for the purpose of financing such acquisition), so long as the principal amount of such Indebtedness does not exceed the gross proceeds actually received by the Wireline Companies in connection with such disposition;
(xvi) any Earn-out Obligation or obligation in respect of any purchase price adjustment, except to the extent that the contingent consideration relating thereto is not paid within 15 Business Days after the contingency relating thereto is resolved;
(xvii) Permitted Refinancing Indebtedness of any Wireline Company incurred in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than Indebtedness of the Borrower to any Subsidiary or of any Subsidiary to the Borrower or any Subsidiary other Subsidiary) that are was permitted to be incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower under clause (i), (ii), (iii), (iv), (vii), (viii) or such Subsidiary sells (ix) or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date this clause (xvii) of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a)this paragraph;
(xiiixviii) Permitted Pari Passu Indebtedness, provided that the sum of (A) Guarantees and/or indemnities (other than in respect the aggregate principal amount of payment of principal or interest) by all Permitted Pari Passu Indebtedness incurred since the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters Second ARCA Effective Date and (B) Guarantees and/or indemnities in respect all commitments, loans and other extensions of customary non-recourse carveouts credit made available under the Incremental Facilities shall not exceed $800,000,000;
(including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case xix) Indebtedness incurred in connection with investments or Indebtedness otherwise permitted under this Agreement; andthe financing of insurance premiums in the ordinary course of business;
(xivxx) Guarantees by the Borrower or any Subsidiary of: (A) other Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests Wireline Company in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that (A) no Event of Default has occurred and is continuing or would result therefrom and (B) the Borrower is in compliance on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness with the covenants contained in Sections 6.14 and 6.15 recomputed as of the last day of the most-recently ended Fiscal Quarter prior to the issuance of such Indebtedness; and
(xxi) Permitted Additional Debt; provided that (A) no Event of Default has occurred and is continuing or would result therefrom and (B) the Borrower is in compliance on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness with the covenants contained in Sections 6.14 and 6.15 recomputed as of the last day of the most-recently ended Fiscal Quarter prior to the issuance of such Indebtedness.
(b) If any Indebtedness is incurred pursuant to clause (viii), (ix), (xx), or (xxi) of paragraph (a) of this Section in an aggregate principal amount exceeding $250,000,000, the Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer to such Preferred Equity Interests issued effect, together with all relevant financial information reasonably requested by the Administrative Agent, including reasonably detailed calculations demonstrating compliance with such covenants (which calculations shall, if made as of the last day of any Fiscal Quarter for which the Borrower has not delivered to Holdings for purposes the Administrative Agent the financial statements and certificate of matching Preferred Equity Interests issued a Financial Officer required to be delivered by Holdings shall Section 5.01(a) or (b) and Section 5.01(c), respectively, be excluded from the accompanied by a reasonably detailed calculation of such amountConsolidated Adjusted EBITDA and Consolidated Cash Interest Expense for the relevant period).
(c) No Subsidiary will issue any Preferred Stock.
Appears in 2 contracts
Samples: Credit Agreement (Windstream Corp), Credit Agreement (Windstream Corp)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit any Subsidiary Loan Party to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan DocumentsDocuments (including Indebtedness under any Incremental Facilities incurred in compliance with Section 2.19);
(ii) (1) Indebtedness existing on the Effective Date and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), 6.01 and (3) extensions, renewals and renewals, replacements or refinancings of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall do not be Indebtedness of an obligor that was not an obligor with respect to increase the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a outstanding principal amount that exceeds the principal amount of the Indebtedness being extended, renewed thereof or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have result in an earlier maturity date or shorter decreased weighted average life than thereof; provided that the Indebtedness being extendedterms of any extension, renewed renewal, replacement or replacedrefinancing shall be satisfactory to the Administrative Agent;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to any Subsidiary Loan Party and of any Subsidiary to the Borrower or any other Subsidiary, provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any other Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the AgentParty;
(viv) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary Loan Party of Indebtedness of the Borrower or any other Subsidiary, ; provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Excluded Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations6.04;
(Av) Indebtedness of the Borrower or any Subsidiary Loan Party incurred to finance the acquisition, construction or improvement by it of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof; provided that (A) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, improvement and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding aggregate principal amount of such extensions, renewals and replacements does Indebtedness permitted by this clause (v) shall not exceed (1) $10,000,000 at any time outstanding if either the principal Total Leverage Ratio, measured prior to giving effect to such Indebtedness, or the Pro Forma Total Leverage Ratio, measured after giving effect to such Indebtedness, is greater than or equal to 6.50 to 1.00, and (2) $25,000,000 at any time outstanding if both the Total Leverage Ratio, measured prior to giving effect to such Indebtedness, and the Pro Forma Total Leverage Ratio, measured after giving effect to such Indebtedness, is less than 6.50 to 1.00;
(vi) Indebtedness of any Person that becomes a Subsidiary Loan Party after the Effective Date; provided that (A) such Indebtedness being extended, renewed exists at the time such Person becomes a Subsidiary and is not created in contemplation of or replaced in connection with such Person becoming a Subsidiary and (plus any accrued but unpaid interest and premium thereon); provided, however, that B) the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 15,000,000 at any time outstanding;
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (Bvii) other unsecured Indebtedness of the Borrower or any and the Subsidiary incurred prior to the Fifth Amendment Effective Date Loan Parties in an aggregate principal amount not exceeding $5,000,000 25,000,000 at any time outstanding;; and
(ixviii) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(x) unsecured Indebtedness of the Borrower or any and the Subsidiary in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations (other than in respect of other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes Parties in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 75,000,000 at any time outstanding; provided that (A) the Total Leverage Ratio, measured prior to giving effect to such Indebtedness, and the Pro Forma Total Leverage Ratio, measured after giving effect to such Indebtedness, is less than 6.50 to 1.00, (B) such Indebtedness does not mature earlier than the Term Loan Maturity Date and (C) such Indebtedness does not amortize prior to the Term Loan Maturity Date.
(b) The Borrower will not, nor will it permit any such Preferred Subsidiary Loan Party to, issue any preferred Equity Interests issued by Interests, except that the Borrower to Holdings for purposes of matching Preferred may issue any preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amountInterest that does not constitute a Disqualified Equity Interest.
Appears in 2 contracts
Samples: Credit Agreement (Cumulus Media Inc), Credit Agreement (Cumulus Media Inc)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1) Indebtedness existing on the Effective Closing Date and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replaced6.01;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary, ; provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent6.04;
(viv) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, ; provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause 6.04;
(v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
(A) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, ; provided that (1) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, improvement and (B2) extensions, renewals and replacements of any such Indebtedness so long as the outstanding aggregate principal amount of such extensionsCapital Lease Obligations and Indebtedness incurred pursuant to this clause (v), renewals when added to the aggregate principal amount of Sale and replacements does not exceed the principal of the Leaseback Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest incurred pursuant to Section 6.06 and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (viand Attributable Debt of the Service Company described in Section 6.16(d)(i) allocated to the Borrower and its Subsidiaries pursuant to the Shared Services Agreement, shall not exceed $5,000,000 15,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(viivi) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Closing Date, ; provided that (A) such Indebtedness exists at the time such Person becomes a Subsidiary and was is not created in contemplation of or in connection with such Person becoming a Subsidiary, (B) such Indebtedness does not prevent the Collateral and extensions, renewals and replacements of Guarantee Requirement from being fully satisfied with respect to any such Indebtedness so long as Subsidiary that is required to become a Subsidiary Loan Party, (C) the principal amount Borrower is in Pro Forma Compliance after giving effect to the acquisition of such extensions, renewals Subsidiary and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that D) the aggregate principal amount of Indebtedness permitted by incurred pursuant to this clause (viivi) shall not exceed $5,000,000 20,000,000 at any time outstanding;
(viiivii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
(ix) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred obtained in the ordinary course of businessbusiness so long as the aggregate amount of the reimbursement obligations (contingent or otherwise) in respect thereof is expressly limited to a face amount at any time outstanding not to exceed $15,000,000;
(xviii) 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 other IndebtednessIndebtedness for borrowed money), in each case provided in the ordinary course of business;
(xiix) Indebtedness in respect of Swap Agreements permitted by Section 10.6.6.07;
(xiix) Capital Lease Obligations Indebtedness of the Borrower or any Subsidiary that are incurred prior to arising from the Fifth Amendment Effective Date and result from any arrangement whereby honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its ordinary course of business, whether now owned or hereafter acquired, and thereafter rents or leases provided that such property or other property Indebtedness is extinguished within five Business Days of its incurrence;
(xi) Indebtedness that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable constitutes an Investment permitted under Section 10.11.(a)6.04;
(xii) Indebtedness of Foreign Subsidiaries in an aggregate principal amount at any time outstanding not exceeding $5,000,000;
(xiii) Indebtedness incurred by the Borrower or any Subsidiary representing deferred compensation to employees of the Borrower or any Subsidiary incurred in the ordinary course of business;
(Axiv) Guarantees and/or indemnities Indebtedness consisting of promissory notes issued by the Borrower or any Subsidiary to future, present or former directors, officers, members of management, employees or consultants of the Borrower or any of its Subsidiaries or their respective estates, heirs, family members, spouses or former spouses to finance the purchase or redemption of Equity Interests in the Borrower as permitted by Section 6.08(a)(iii);
(other than in respect of payment of principal or interestxv) Indebtedness incurred by the Borrower or any Subsidiary in respect connection with any Permitted Acquisition consisting of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities obligations in respect of customary non-recourse carveouts indemnification, the adjustment of the purchase price or similar adjustments;
(includingxvi) Indebtedness consisting of obligations of the Borrower or any Subsidiary under deferred compensation or other similar arrangements incurred by such Person in connection with Permitted Acquisitions;
(xvii) Indebtedness incurred by Borrower or any Subsidiary in respect of netting services, without limitation environmental, fraud, misappropriation overdraft protections and bankruptcy matters)similar arrangements, in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; andcash management and deposit accounts;
(xivxviii) Guarantees by Indebtedness consisting of (A) the financing of insurance premiums or (B) take-or-pay obligations of the Borrower or any Subsidiary of: contained in supply arrangements, in each case, in the ordinary course of business;
(Axix) Refinancing Indebtedness of the Borrower or any joint venture that is not a SubsidiarySubsidiary incurred in exchange for, provided that such Guarantee and such or the Net Proceeds of which are used to refund, refinance or replace Indebtedness are in effect prior (other than Indebtedness of the Borrower to any Subsidiary or of any Subsidiary to the Fifth Amendment Effective Date Borrower or any other Subsidiary) that was permitted to be incurred under clause (ii), (v), (vi) or (Bxix) of this Section 6.01(a);
(xx) Permitted Subordinated Indebtedness, without any extensionlimitation as to amount, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such (other than with respect to the Subordinated Guarantee) the Borrower and the Subsidiaries are in Pro Forma Compliance;
(xxi) other Indebtedness of the Borrower or any Subsidiary guaranteed (other than Indebtedness of the Original Borrower or a Subsidiary to any Affiliate of the Borrower (other than a Subsidiary of the Borrower)), in an aggregate principal amount at any time outstanding pursuant to this clause (xxi) not in excess of $30,000,000;
(xxii) unsecured Indebtedness prior and Attributable Debt owing to the Fifth Amendment Effective Date Service Company incurred pursuant to the Shared Services Transactions; and
(xxiii) all premium (if any), interest (including post-petition interest), fees, expenses, charges and such extension, renewal additional or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid contingent interest and redemption premium on such Indebtednessobligations described above.
(b) Holdings The Borrower will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower willnot, nor will they it permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amountDisqualified Stock.
Appears in 2 contracts
Samples: Loan Agreement (Supermedia Inc.), Loan Agreement (Dex Media, Inc.)
Indebtedness; Certain Equity Securities. (a) The Borrower Loan Parties will not, and will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1) Indebtedness existing on the Effective Date and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one Section 6.01 of the other subsections of this Section 10.1.(a), Disclosure Letter and (3) extensions, renewals and replacements of any such Refinancing Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replacedthereof;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower Parent to any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower Parent or any other Restricted Subsidiary, ; provided that (A) that such Indebtedness of shall not have been transferred to any Person other than Parent or any Restricted Subsidiary, (B) any such Indebtedness owing by (x) a Loan Party to a Restricted Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (By) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Canadian Loan Party to any Subsidiary that is not a Loan Party shall U.S. Borrower shall, in each case be unsecured and subordinated in right of payment to the applicable Secured Obligations on terms customary for intercompany subordinated Indebtedness, as reasonably satisfactory to determined by the AgentAdministrative Agent and (C) any such Indebtedness shall be incurred in compliance with Section 6.04;
(iv) Guarantees incurred in compliance with Section 6.04;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower Parent or any other Subsidiary, provided that Restricted Subsidiary (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
(A) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereofSynthetic Lease Obligations, provided that such Indebtedness is incurred prior to or within 90 180 days after such acquisition or the completion of such construction or improvement, improvement and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements Indebtedness does not exceed the principal cost of acquiring, constructing or improving such fixed or capital assets or (B) assumed in connection with the acquisition of any fixed or capital assets, and Refinancing Indebtedness in respect of any of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), foregoing; provided that the aggregate principal amount of Indebtedness permitted by this clause (viiv) shall not exceed $5,000,000 50,000,000 at any time outstanding;
(vi) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit and checking accounts, in each case, in the ordinary course of business;
(vii) Indebtedness in respect of letters of credit, bank guarantees and similar instruments issued for the account of Parent or any Restricted Subsidiary in the ordinary course of business supporting obligations under workers’ compensation, unemployment insurance and other social security laws;
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower Parent or any Restricted Subsidiary in the form of bona fide purchase price adjustments or earn-outs incurred prior to in connection with any Permitted Acquisition or other Investment permitted by Section 6.04;
(ix) the Fifth Amendment Effective Date Senior Notes and any Refinancing Indebtedness in respect thereof;
(x) under the Term Credit Agreement in an aggregate principal amount not exceeding to exceed $5,000,000 1,500,000,000 at any time outstanding;
(ixxi) Indebtedness owed to any Person (including obligations of Loan Parties in respect of letters surety bonds (whether bid performance or otherwise) and performance and completion guarantees and other obligations of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Persona like nature, in each case incurred in the ordinary course of business;
(xA) Permitted Debt; provided that, after giving effect to the incurrence of such Indebtedness and any related transaction on a Pro Forma Basis the Total Leverage Ratio shall not exceed 4.00 to 1.00 (in each case calculated as of the last day of the fiscal quarter of Parent then most recently ended for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b)); provided further that (I) the aggregate principal amount of Indebtedness of the Restricted Subsidiaries that are not U.S. Borrowers permitted by this clause (xii) shall not exceed $50,000,000 at any time outstanding and (B) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to clause (A) above;
(xiii) Indebtedness incurred under leases of real property in respect of tenant improvements;
(xiv) Indebtedness of the Borrower Parent or any Restricted Subsidiary assumed in connection with any Permitted Acquisition so long as such Indebtedness is not incurred in contemplation of such Permitted Acquisition and any Refinancing Indebtedness in respect thereof;
(xv) Indebtedness of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations Foreign Subsidiaries (other than any Canadian Subsidiary) in respect an amount not to exceed $25,000,000 at any one time outstanding;
(xvi) other Indebtedness in an aggregate principal amount not to exceed $50,000,000 at any time outstanding;
(xvii) Indebtedness consisting of other Indebtedness)(a) the financing of insurance premiums and (b) take-or-pay obligations contained in supply arrangements, in each case provided case, in the ordinary course of business;
(xixviii) obligations under any agreement governing the provision of treasury or cash management services, including deposit accounts, overnight draft, credit cards, debit cards, p-cards (including purchasing cards and commercial cards), funds transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade finance services and other cash management services; and
(xix) Indebtedness in respect the form of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness6.07.
(b) Holdings Parent will not, and will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (orDisqualified Stock, other than, in the case of the Trust Preferred SecuritiesRestricted Subsidiaries, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstandingto Parent or a Restricted Subsidiary; provided that any such Preferred issuance of Equity Interests issued by the Borrower of any Restricted Subsidiary that is not a Loan Party to Holdings for purposes of matching Preferred Equity Interests issued by Holdings any Loan Party shall be excluded from the calculation of such amountsubject to Section 6.04.
Appears in 2 contracts
Samples: Credit Agreement (Tailored Brands Inc), Credit Agreement (Mens Wearhouse Inc)
Indebtedness; Certain Equity Securities. (a) The Borrower Company will not, and will not permit any Subsidiary to, create, incur, assume or suffer or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents, and any Indebtedness incurred to refinance any such Indebtedness or under a credit facility that replaces in whole or in part the credit facility established hereby, but only to the extent the Commitments are permanently reduced by the amount so refinanced or by the amount of such replacement facility, as the case may be;
(ii) the Subordinated Notes, and up to $15,000,000 aggregate principal amount of Series B Notes (1as defined in the Securities Purchase Agreement) issued to finance one or more acquisitions permitted under the terms of this Agreement;
(iii) Indebtedness existing on the Effective Date date hereof and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a)6.01, and (3) any extensions, renewals and or replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds extent the principal amount of such Indebtedness is not increased, the final maturity of such Indebtedness is not earlier than that of the Indebtedness being extendedreplaced, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter the weighted average life than the to maturity of such Indebtedness being extendedis not decreased, renewed or replaced;
(iii) Additional Mortgage Indebtedness and extensionssuch Indebtedness, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior if subordinated to the Fifth Amendment Effective Date ifObligations, remains so subordinated on terms not less favorable to the date Lenders and the original obligors in respect of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, Indebtedness remain the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreementonly obligors thereon;
(iv) obligations of the Company in respect of the Industrial Revenue Bonds;
(v) Indebtedness under Hedging Agreements entered into to protect the Company and its Subsidiaries from interest or currency exchange rate risks to which they are exposed in the ordinary course of their businesses and not for speculative purposes;
(vi) Indebtedness of the Borrower Company or any of its Subsidiaries in connection with trade or standby letters of credit or performance, surety or appeal bonds issued in the ordinary course of business;
(vii) Indebtedness of any Person acquired by the Company or any Subsidiary in a transaction permitted hereunder and existing at the time of such acquisition; provided that (A) such Indebtedness shall not have been incurred in contemplation of such acquisition and (B) neither the Company nor any Subsidiary (other than such Person and its subsidiaries) shall be directly or indirectly liable in respect of such Indebtedness;
(viii) Indebtedness of the Company to any Subsidiary and of any Subsidiary to the Borrower Company or any other Subsidiary, ; provided that (A) that no such Indebtedness shall be transferred to any Person other than the Company or a Subsidiary and (B) any such Indebtedness of any Subsidiary that is not a Loan Party to the Borrower Company or any US Subsidiary that is a Loan Party shall be subject to have been incurred in compliance with Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent6.01;
(vix) Guarantees by the Borrower Company of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower Company or any other Subsidiary, ; provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower Company or any US Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations6.06;
(Ax) Indebtedness of the Borrower Company or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations Obligations, and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition extensions, renewals and replacements of any such assets Indebtedness that do not increase the outstanding principal amount thereof or secured by a Lien on any such assets prior to the acquisition result in an earlier maturity date or decreased weighted average life thereof, ; provided that (A) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of any such Indebtedness does not exceed 90% of the purchase price or the cost of construction or improvement of the related assets and (C) the aggregate principal amount of all Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (viix) shall not exceed $5,000,000 at any time outstanding;
(viiixi) Indebtedness that is incurred and used to repurchase all of the outstanding Subordinated Notes and Series B Notes (Aas defined in the Securities Purchase Agreement) a Guarantee by or to redeem all of the Borrower outstanding Series C-2 Preferred Shares pursuant to obligations of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and Company existing on the same terms as date hereof to effect such repurchases or redemptions; provided that the final maturity of such Indebtedness is not earlier than the maturity date of, or the mandatory repurchase date for, the Indebtedness so Guaranteed or preferred shares repurchased, the weighted average life to maturity of such Indebtedness is not less than that of the Indebtedness or preferred shares repurchased, such Indebtedness is subordinated to the Obligations on terms not less favorable to the Lenders than those applicable to the Subordinated Notes and the original obligors in respect of such Indebtedness remain the only obligors thereon; and
(Bxii) other unsecured Indebtedness of the Borrower Company incurred without violation of the Securities Purchase Agreement or any other agreement to which the Company or any Subsidiary incurred prior to is party; provided that the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
(ix) of all Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(x) 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 other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
this clause (xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) 5,000,000 at any time outstanding.
(cb) Neither Holdings nor The Company will not issue any preferred stock or other preferred Equity Interests other than Series C-1 Preferred Shares and the Borrower willSeries C-2 Preferred Shares in an aggregate stated amount not greater than $15,000,000, nor and will they not permit any Subsidiary to, to issue or permit to remain outstanding any Preferred Equity Interests except in other than to the case of Holdings Company or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amountanother Subsidiary.
Appears in 1 contract
Samples: Credit Agreement (Labone Inc/)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1) Indebtedness existing on purchase money indebtedness and Capital Lease Obligations in an amount not to exceed $10,000,000 in the Effective Date and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by aggregate at any one of the other subsections of this Section 10.1.(a)time outstanding, and (3) extensions, renewals and replacements of any refinancing indebtedness issued or incurred to refinance any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replacedIndebtedness;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a(x) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to any Subsidiary and Subsidiary, (y) of any Subsidiary to the Borrower or any other Subsidiary, provided Subsidiary and (Az) that Indebtedness of any Subsidiary that is not a Loan Party the Borrower to the Borrower Parent or any Subsidiary of its bank regulated subsidiaries; provided that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any of its Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent;
(iv) [Reserved];
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations[Reserved];
(A) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 at any time outstanding;
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding to exceed $5,000,000 10,000,000 at any one time outstandingso long as no Default or Event of Default has occurred and is continuing or would occur as a result of the incurrence of such Indebtedness;
(ixvii) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(xviii) 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 other Indebtedness), in each case provided in the ordinary course of business;
(xiix) Indebtedness in respect of Swap Agreements permitted by Section 10.6.not entered into for speculative purposes;
(xiix) Capital Lease Obligations any obligation arising from agreements providing for the indemnification, adjustment of purchase price, earn outs or similar obligations, in each case incurred or assumed in connection with the disposition or acquisition of any business, assets or equity interests in a transaction permitted under this Agreement ; and
(a) Indebtedness incurred for operational liquidity needs pursuant to lines of credit, (b) secured and unsecured Indebtedness in connection with the financing of securities and other financial instruments borrowed, bought or sold in the normal day to day conduct of Borrower or any Subsidiary’s business, (c) liabilities payable to brokers, dealers, clearing organizations, clients and correspondents, in each case incurred in the ordinary course of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its Subsidiary’s business, whether now owned including Indebtedness incurred in the ordinary course of business to finance or hereafter acquiredsecure the purchase or carrying of securities, clearing and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basisclearing-related activities, the Leverage Ratio as defined provision of margin for forward, futures, repurchase or similar transactions, Indebtedness constituting credit balances in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) accounts carried by the Borrower or any Subsidiary Subsidiary, the making of advances to customers, the establishment of performance or surety bonds or guarantees, or in respect the nature of capital contributions, project completions and cost-overruns a letter of credit or letter of guaranty to support or secure trading and other performance matters obligations incurred in the ordinary course of business, (d) accounts payable and accrued liabilities in the ordinary course of business of the Borrower and its Subsidiaries, (Be) Guarantees and/or indemnities notes, bills and checks presented in respect the ordinary course of customary non-recourse carveouts business by such Person to banks for collection or deposit, (including, without limitation environmental, fraud, misappropriation f) all obligations of the Borrower and bankruptcy matters), its Subsidiaries of the character referred to in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by definition to the extent owing to the Borrower or any of its Subsidiaries and (g) Guarantees entered into in connection with the ordinary course business of the Borrower or any Subsidiary. Notwithstanding any other provision of this Section 6.01(a), neither the Borrower nor any Broker Dealer Regulated Subsidiary of: (A) shall incur any Indebtedness of any joint venture that is not a incurred for the purpose of contributing to or meeting any capital requirements applicable to itself or any other Broker Dealer Regulated Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings The Borrower will not, and will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amountInterests.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Each of the Parent Guarantor and the U.S. Borrower will not, and will not permit any Subsidiary of their respective Subsidiaries to, directly or indirectly, create, incur, assume or permit to exist (including by way of Guarantee) any Indebtedness, except:
(i) Indebtedness created incurred and outstanding under the Loan Documents;; 109
(ii) (1) Indebtedness existing on the Effective Date and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections Loan Parties (a) incurred and outstanding under the Seller Loan Agreement in an aggregate principal amount not to exceed $150.0 million plus the amount of this Section 10.1.(a), any accrued interest or interest added to the aggregate principal balance of the loans under the Seller Loan Agreement in lieu of cash payment thereof in accordance with the terms of the Seller Loan Agreement and (3b) extensions, renewals and replacements after earlier of any such Indebtedness described in clause (1x) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall the first date on which not be Indebtedness of an obligor that was not an obligor with respect to less than $150.0 million is outstanding under the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), Seller Loan Agreement and (Cy) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extendedDecember 31, renewed or replaced2008, any Permitted Refinancing thereof;
(iii) Additional Mortgage Indebtedness to Remain Outstanding and extensions, renewals and replacements any Permitted Refinancing thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the U.S. Borrower to any Subsidiary Loan Party and of any Subsidiary Loan Party to the U.S. Borrower or any other Subsidiary, provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the AgentParty;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the U.S. Borrower or any Subsidiary that is a Loan Party of Indebtedness of any other Subsidiary that is not a Loan Party shall or the U.S. Borrower, in each case, to the extent such Indebtedness was permitted to be subject to Section 10.4. incurred hereunder, and (C) Guarantees permitted under this clause (v) shall be if such Indebtedness is subordinated to the Obligations under the Loan Documents, such Guarantee is as subordinated in right of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated payment to the Obligations;
(Avi) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided that such Indebtedness is extinguished within five Business Days of its incurrence;
(vii) Indebtedness of the U.S. Borrower or any Subsidiary of the U.S. Borrower incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, ; provided that (A) such Indebtedness is incurred prior to or within 90 120 days after such acquisition or the completion of such construction or improvement, improvement (provided that this subclause (A) shall not apply with respect to fixed or capital assets owned as of and since the Effective Date so long as the proceeds of such Indebtedness incurred after the Effective Date are utilized to repay Loans to the extent required pursuant to Section 2.05(c)(ii)) and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 50.0 million at any time outstanding;
(viii) (A) a Guarantee by Hedging Agreements entered into in the Borrower ordinary course of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent business and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstandingfor speculative purposes;
(ix) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ worker's compensation, health, disability or other employee benefits or property, casualty or liability insuranceinsurance to the U.S. Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(x) 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 other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amount.
Appears in 1 contract
Samples: Credit Agreement (Spirit AeroSystems Holdings, Inc.)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, any Attributable Debt in respect of any Sale and Leaseback Transaction or any Third Party Interests except:
(i) Indebtedness created under the Senior Loan Documents;
(ii) (1) unsecured Indebtedness existing on of the Effective Date and set forth in Schedule 10.1.(a)Borrower, (2) Indebtedness existing on including the Fifth Amendment Effective Date 9.25% Notes, that is permitted not Guaranteed by one any Subsidiary, that does not mature or require scheduled payments of principal prior to the date that is three months after the Tranche 2 Term Maturity Date, and that has covenants and events of default which are determined in good faith by the senior management of the other subsections of this Section 10.1.(a)Borrower to be on market terms, and (3) extensions, renewals and replacements Refinancing Indebtedness issued in respect of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replacedIndebtedness;
(iii) Additional Mortgage Indebtedness of the Borrower and extensionsthe Subsidiaries in respect of intercompany Investments permitted under Section 6.04; provided that such Indebtedness is subordinated to the Senior Obligations (and, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma BasisBorrowing Base Date, the Leverage Ratio Interim Obligations) pursuant to terms substantially the same as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreementthose forth on Annex 2 hereto;
(iv) Indebtedness of (other than Second Priority Debt and the Borrower to 9.25% Notes) outstanding on the Second Restatement Effective Date under the Effective Date Indentures; provided that no Subsidiary Loan Party will have any Subsidiary liability with respect thereto except under and of any Subsidiary pursuant to the Borrower or any other Subsidiary, provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the AgentSecond Priority Collateral Documents;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other SubsidiarySecond Priority Debt in an aggregate principal amount, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
(A) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection together with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by incurred pursuant to clause (vi)(B) of this clause Section 6.01(a), not in excess of $1,800,000,000 at any time outstanding;
(vi) shall unsecured Indebtedness of the Borrower (A) outstanding on the Original Restatement Effective Date (and any Refinancing Indebtedness in respect thereof) or (B) incurred after the Original Restatement Effective Date that is (1) not exceed in excess of $5,000,000 750,000,000 at any time outstanding, and any (2) together with the aggregate principal amount of Indebtedness permitted by this incurred pursuant to clause (viv) that is incurred on or after the Fifth Amendment Effective Date shall of this Section 6.01(a), not be used to finance the acquisition, construction, improvement or expansion in excess of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date$1,800,000,000 at any time outstanding;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of secured by Liens on real property or Attributable Debt incurred in connection with such Person becoming a Subsidiary, Sale and extensions, renewals and replacements of Leaseback Transactions involving real property; provided that any such Indebtedness so long Indebtedness, or any such lease entered into in connection with the Sale and Leaseback Transaction giving rise to such Attributable Debt, shall have a maturity date or termination date, as the principal amount of such extensionscase may be, renewals after the date that is three months after the Tranche 2 Term Maturity Date; and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided further that the aggregate principal amount aggrxxxxx xxxxxxxxx xxxxxx of Indebtedness permitted by and Attributable Debt incurred pursuant to this clause (vii) shall not exceed $5,000,000 600,000,000 at any time outstanding;
(viii) (A) a Guarantee by the Borrower Refinancing Indebtedness issued in respect of Indebtedness of Holdings or Attributable Debt permitted under Section 10.1.(b)(iiiclauses (iv), provided the Guarantee permitted under this clause (viii)(Axiii) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstandingxvi);
(ix) Indebtedness owed to any Person (including obligations in respect endorsements of letters of credit negotiable instruments for the benefit of such Person) providing workers’ compensation, health, disability deposit or other employee benefits collection or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred similar transactions in the ordinary course of business;
(x) Indebtedness for borrowed money and Capital Lease Obligations existing on the Second Restatement Effective Date (other than Second Priority Debt and Indebtedness referred to in clauses (ii) and (iv) above) and set forth on Schedule 6.01(a)(x), but not any extensions, renewals, refinancings or replacements of such Indebtedness;
(xi) Capital Lease Obligations with respect to leases existing on the Borrower or any Subsidiary Second Restatement Effective Date that were accounted for as operating leases on the Original Restatement Effective Date and thereafter reclassified as Capital Lease Obligations;
(xii) Indebtedness (including Capital Lease Obligations) and Attributable Debt in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance Sale and completion guarantees and similar obligations (other than Leaseback Transactions in respect of other Indebtedness), in each case provided equipment financing or leasing in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations business of the Borrower or any Subsidiary that are incurred prior to and the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a)Subsidiaries consistent with past practices;
(xiii) purchase money Indebtedness (including Capital Lease Obligations) and Attributable Debt in respect of Sale and Leaseback Transactions in each case incurred to finance the acquisition, development, construction or opening of any Store after the Second Restatement Effective Date; provided that such Indebtedness or Attributable Debt (A) Guarantees and/or indemnities is incurred not later than 24 months following the completion of the acquisition, development, construction or opening of such Store, (other than B) any Lien securing such Indebtedness or Attributable Debt is limited to the Store financed with the proceeds thereof, and (C) is incurred in respect connection with a transaction that is substantially consistent with the business plan of payment of principal or interest) by the Borrower or any Subsidiary provided to the Lenders prior to the Second Restatement Effective Date;
(A) Third Party Interests issued by Securitization Vehicles in respect of capital contributionsSecuritizations permitted by Section 6.05, project completions and cost-overruns and other performance matters Indebtedness represented by such Third Party Interests and (B) Guarantees Indebtedness of the Borrower or its Subsidiaries that may be deemed to exist solely by virtue of a Factoring Transaction permitted by this Agreement; provided that the aggregate amount of all Securitizations plus the aggregate amount of Indebtedness permitted by clause (B) shall not exceed $950,000,000 at any time outstanding;
(xv) Indebtedness of Subsidiaries other than Securitization Vehicles that may be deemed to exist solely by virtue of Standard Securitization Undertakings entered into by such Subsidiaries as sellers of Securitization Assets in Securitizations permitted by paragraph (xiv) above;
(xvi) Indebtedness under the New Notes, the Jean Coutu Subordinated Notes and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters)the Bridge Facility, in each case an xxxxxxxxx principal amount not in connection with investments or Indebtedness otherwise permitted under this Agreementexcess of $1,720,000,000; and
(xivxvii) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect Subsidiaries of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amount.9.25
Appears in 1 contract
Samples: Credit Agreement (Rite Aid Corp)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any IndebtednessIndebtedness or Attributable Debt, except:
(i) Indebtedness created under the Loan Documents;
(ii) Indebtedness under the Related Credit Facility in an aggregate amount not in excess of $825,000,000 at any time outstanding;
(1iii) the Senior Notes in an aggregate amount not in excess of $300,000,000 at any time outstanding;
(iv) the Capital Securities in an aggregate amount not in excess of $200,000,000 at any time outstanding;
(v) Indebtedness existing on the Effective Date date hereof and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), 6.01 and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall do not be Indebtedness of an obligor that was not an obligor with respect to increase the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a outstanding principal amount that exceeds the principal amount of the Indebtedness being extended, renewed thereof or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have result in an earlier maturity date or shorter decreased weighted average life than the Indebtedness being extended, renewed or replacedthereof;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(ivvi) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary, ; provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent6.04;
(vvii) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, ; provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations6.04;
(Aviii) Indebtedness of the Borrower or any Restricted Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof; provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(viii) Indebtedness and (ii) Attributable Debt in respect of any Person that becomes a Subsidiary after October 6Sale-Leaseback Transactions, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation excess of or $75,000,000 in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 at any time outstanding;
(viiii) (A) a Guarantee by Indebtedness of Restricted Subsidiaries that are Securitization Vehicles in respect of Third Party Securities in an aggregate amount not in excess of $200,000,000 at any time outstanding minus the Borrower then outstanding principal amount of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations CoBank Receivables Loan Agreement and (Bii) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date and Restricted Subsidiaries consisting solely of Liens on their Sellers' Retained Interests in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
(ix) Indebtedness owed to any Person (including connection with Securitizations permitted by Section 6.04 securing obligations in respect of letters Third Party Securities in an aggregate amount not in excess of credit for $200,000,000 at any time outstanding minus the benefit then outstanding principal amount of such PersonIndebtedness under the CoBank Receivables Loan Agreement; and
(xi) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case Indebtedness of LOL Finance and its Wholly Owned Subsidiaries incurred in the ordinary course of business;
business to finance their assets; provided that such Indebtedness (x) 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 other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall is not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) Guaranteed by the Borrower or any Subsidiary in respect of capital contributionsother Restricted Subsidiaries, project completions and cost-overruns and other performance matters except to the extent permitted pursuant to clause (vii) above and (By) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is does not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding exceed $150,000,000 (plus an over allotment of up to 15.0%) 100,000,000 at any time outstanding.
(cb) Neither Holdings nor the The Borrower will, nor will they not permit any Restricted Subsidiary to, to issue any preferred stock or permit to remain outstanding any Preferred other preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amountInterests.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower Parent will not, and will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1) Indebtedness existing on the Effective Date date hereof and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one Section 6.01 of the other subsections of this Section 10.1.(a), Disclosure Letter and (3) extensions, renewals and replacements of any such Refinancing Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replacedthereof;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower Parent to any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower Parent or any other Restricted Subsidiary, ; provided that (A) that such Indebtedness of shall not have been transferred to any Subsidiary that is not a Person other than Parent or any Restricted Subsidiary, (B) any such Indebtedness owing by any Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Restricted Subsidiary that is not a Loan Party shall be unsecured and subordinated in right of payment to the Loan Document Obligations on terms customary for intercompany subordinated Indebtedness, as reasonably satisfactory to determined by the AgentAdministrative Agent and (C) any such Indebtedness shall be incurred in compliance with Section 6.04;
(iv) Guarantees incurred in compliance with Section 6.04;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower Parent or any other Subsidiary, provided that Restricted Subsidiary (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
(A) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereofSynthetic Lease Obligations, provided that such Indebtedness is incurred prior to or within 90 180 days after such acquisition or the completion of such construction or improvement, improvement and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements Indebtedness does not exceed the principal cost of acquiring, constructing or improving such fixed or capital assets or (B) assumed in connection with the acquisition of any fixed or capital assets, and Refinancing Indebtedness in respect of any of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), foregoing; provided that the aggregate principal amount of Indebtedness permitted by this clause (viiv) shall not exceed $5,000,000 50,000,000 at any time outstanding;
(vi) Indebtedness in respect of netting services, overdraft protections deposit and checking accounts, in each case, in the ordinary course of business;
(vii) Indebtedness in respect of letters of credit, bank guarantees and similar instruments issued for the account of Parent or any Restricted Subsidiary in the ordinary course of business supporting obligations under workers’ compensation, unemployment insurance and other social security laws;
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower Parent or any Restricted Subsidiary in the form of bona fide purchase price adjustments or earn-outs incurred prior to in connection with any Permitted Acquisition or other Investment permitted by Section 6.04;
(ix) the Fifth Amendment Effective Date Senior Notes and any Refinancing Indebtedness in respect thereof;
(x) Indebtedness under the ABL Credit Agreement in an aggregate principal amount not exceeding to exceed $5,000,000 650,000,000 at any time outstanding;
(ixxi) Indebtedness owed to any Person (including obligations of Loan Parties in respect of letters surety bonds (whether bid performance or otherwise) and performance and completion guarantees and other obligations of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Persona like nature, in each case incurred in the ordinary course of business;
(xA) Permitted Debt; provided that, after giving effect to the incurrence of such Indebtedness and any related transaction on a Pro Forma Basis the Total Leverage Ratio shall not exceed 3.75 to 1.00 (in each case calculated as of the last day of the fiscal quarter of Parent then most recently ended for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b)); provided further that (I) the aggregate principal amount of Indebtedness of the Restricted Subsidiaries that are not Loan Parties permitted by this clause (xii) shall not exceed $50,000,000 at any time outstanding and (B) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to clause (A) above;
(xiii) Refinancing Debt Securities and Refinancing Indebtedness in respect thereof;
(xiv) Indebtedness incurred under leases of real property in respect of tenant improvements ;
(xv) Indebtedness of the Borrower Parent or any Restricted Subsidiary assumed in connection with any Permitted Acquisition so long as such Indebtedness is not incurred in contemplation of such Permitted Acquisition and any Refinancing Indebtedness in respect thereof;
(xvi) other Indebtedness in an aggregate principal amount not to exceed $50,000,000 at any time outstanding;
(xvii) Indebtedness consisting of performance bonds, bid bonds, appeal bonds, surety bonds, performance (a) the financing of insurance premiums and completion guarantees and similar (b) take-or-pay obligations (other than contained in respect of other Indebtedness)supply arrangements, in each case provided case, in the ordinary course of business;
(xixviii) obligations under any agreement governing the provision of treasury or cash management services, including deposit accounts, overnight draft, credit cards, debit cards, p-cards (including purchasing cards and commercial cards), funds transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade finance services and other cash management services; and
(xix) Indebtedness in respect the form of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness6.07.
(b) Holdings Parent will not, and will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (orDisqualified Stock, other than, in the case of the Trust Preferred SecuritiesRestricted Subsidiaries, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstandingto Parent or a Restricted Subsidiary; provided that any such Preferred issuance of Equity Interests issued by the Borrower of any Restricted Subsidiary that is not a Loan Party to Holdings for purposes of matching Preferred Equity Interests issued by Holdings any Loan Party shall be excluded from the calculation of such amountsubject to Section 6.04.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower Parent will not, and will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1) Indebtedness existing on the Effective Date and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one Section 6.01 of the other subsections of this Section 10.1.(a), Disclosure Letter and (3) extensions, renewals and replacements of any such Refinancing Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replacedthereof;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower Parent to any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower Parent or any other Subsidiary, Restricted Subsidiary (other than Indebtedness permitted under Section 6.01(a)(xx)); provided that (A) that such Indebtedness of shall not have been transferred to any Subsidiary that is not a Person other than Parent or any Restricted Subsidiary, (B) any such Indebtedness owing by any Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Restricted Subsidiary that is not a Loan Party shall be unsecured and subordinated in right of payment to the Loan Document Obligations on terms customary for intercompany subordinated Indebtedness, as reasonably satisfactory to determined by the AgentAdministrative Agent and (C) any such Indebtedness shall be incurred in compliance with Section 6.04;
(iv) Guarantees incurred in compliance with Section 6.04;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower Parent or any other Subsidiary, provided that Restricted Subsidiary (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
(A) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereofSynthetic Lease Obligations, provided that such Indebtedness is incurred prior to or within 90 180 days after such acquisition or the completion of such construction or improvement, improvement and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements Indebtedness does not exceed the principal cost of acquiring, constructing or improving such fixed or capital assets or (B) assumed in connection with the acquisition of any fixed or capital assets, and Refinancing Indebtedness in respect of any of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), foregoing; provided that the aggregate principal amount of Indebtedness permitted by this clause (viiv) shall not exceed $5,000,000 75,000,000 at any time outstanding;
(vi) Indebtedness in respect of netting services, overdraft protections deposit and checking accounts, in each case, in the ordinary course of business;
(vii) Indebtedness in respect of letters of credit, bank guarantees and similar instruments issued for the account of Parent or any Restricted Subsidiary in the ordinary course of business supporting obligations under workers’ compensation, unemployment insurance and other social security laws;
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower Parent or any Restricted Subsidiary in the form of bona fide purchase price adjustments or earn-outs incurred prior to in connection with any Permitted Acquisition or other Investment permitted by Section 6.04;
(ix) the Fifth Amendment Effective Date Senior Notes and any Refinancing Indebtedness in respect thereof;
(x) Indebtedness under the ABL Credit Agreement in an aggregate principal amount not exceeding to exceed the greater of (A) $5,000,000 650,000,000 and (B) the Borrowing Base (measured as of the date of incurrence) at any time outstanding;
(ixxi) Indebtedness owed to any Person (including obligations of Loan Parties in respect of letters surety bonds (whether bid performance or otherwise) and performance and completion guarantees and other obligations of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Persona like nature, in each case incurred in the ordinary course of business;
(xA) Permitted Debt; provided that, after giving effect to the incurrence of such Indebtedness and any related transaction on a Pro Forma Basis the Total Leverage Ratio shall not exceed 4.00 to 1.00 (in each case calculated as of the last day of the fiscal quarter of Parent then most recently ended for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b)); provided, further, that (I) the aggregate principal amount of Indebtedness of the Restricted Subsidiaries that are not Loan Parties permitted by this clause (xii) shall not exceed $50,000,000 at any time outstanding and (B) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to clause (A) above;
(xiii) Incremental Equivalent Debt, Refinancing Debt Securities and Refinancing Indebtedness in respect thereof;
(xiv) Indebtedness incurred under leases of real property in respect of tenant improvements ;
(xv) Indebtedness of the Borrower Parent or any Restricted Subsidiary assumed in connection with any Permitted Acquisition so long as such Indebtedness is not incurred in contemplation of such Permitted Acquisition and any Refinancing Indebtedness in respect thereof;
(xvi) other Indebtedness in an aggregate principal amount not to exceed $100,000,000 at any time outstanding;
(xvii) Indebtedness consisting of performance bonds, bid bonds, appeal bonds, surety bonds, performance (a) the financing of insurance premiums and completion guarantees and similar (b) take-or-pay obligations (other than contained in respect of other Indebtedness)supply arrangements, in each case provided case, in the ordinary course of business;
(xixviii) obligations under any agreement governing the provision of treasury or cash management services, including deposit accounts, overnight draft, credit cards, debit cards, p-cards (including purchasing cards and commercial cards), funds transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade finance services and other cash management services;
(xix) Indebtedness in respect the form of Swap Agreements permitted by under Section 10.6.;6.07; and
(xiixx) Capital Lease Obligations Indebtedness of the Borrower Parent to any Restricted Subsidiary and of any Restricted Subsidiary to Parent or any other Restricted Subsidiary incurred for the purposes of sourcing inventory or managing cash of Parent and the Restricted Subsidiaries; provided that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (such Indebtedness shall not have been transferred to any Person other than in respect of payment of principal or interest) by the Borrower Parent or any Subsidiary in respect of capital contributionsRestricted Subsidiary, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or any such Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees owing by the Borrower or any Loan Party to a Restricted Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee Loan Party shall be unsecured and such Indebtedness are subordinated in effect prior right of payment to the Fifth Amendment Effective Date or (B) any extensionLoan Document Obligations on terms customary for intercompany subordinated Indebtedness, renewal or replacement of Indebtedness (as reasonably determined by the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such IndebtednessAdministrative Agent.
(b) Holdings Parent will not, and will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (orDisqualified Stock, other than, in the case of the Trust Preferred SecuritiesRestricted Subsidiaries, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstandingto Parent or a Restricted Subsidiary; provided that any such Preferred issuance of Equity Interests issued by the Borrower of any Restricted Subsidiary that is not a Loan Party to Holdings for purposes of matching Preferred Equity Interests issued by Holdings any Loan Party shall be excluded from the calculation of such amountsubject to Section 6.04.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Neither Borrower will, nor will not, and will not it permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(ia) Indebtedness created under the Loan Documents (including, for the avoidance of doubt, the Carve Out) and the Pre-Petition Loan Documents;
(ii) (1b) Indebtedness existing on the Effective Date date hereof and set forth in on Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replaced6.01;
(iiic) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) unsecured Indebtedness of the Parent Borrower to any Restricted Subsidiary and of any Restricted Subsidiary to the Parent Borrower or any other Restricted Subsidiary; provided that (i) such Indebtedness shall not have been transferred to any Person other than the Parent Borrower or any Restricted Subsidiary, provided (Aii) that any such Indebtedness of owing by any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Restricted Subsidiary that is not a Loan Party shall be unsecured and subordinated in right of payment to the Loan Document Obligations on terms reasonably satisfactory to and the AgentPre-Petition Lender Obligations and (iii) any such Indebtedness shall be incurred in compliance with Section 6.04;
(vd) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this incurred in compliance with Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations6.04;
(Ae) Indebtedness of the Parent Borrower or any Restricted Subsidiary (i) incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereofSynthetic Lease Obligations, provided that such Indebtedness is incurred prior to or within 90 270 days after such acquisition or the completion of such construction or improvement, improvement and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements Indebtedness does not exceed the principal cost of acquiring, constructing or improving such fixed or capital assets or (ii) assumed in connection with the Indebtedness being extended, renewed acquisition of any fixed or replaced (plus any accrued but unpaid interest and redemption premium thereon), capital assets; provided that the aggregate principal amount of Indebtedness permitted by this clause (viie) at the time of incurrence thereof shall not exceed $5,000,000 1,000,000;
(f) Indebtedness in respect of netting services, overdraft protections and deposit and checking accounts, in each case, in the ordinary course of business;
(g) Indebtedness in respect of letters of credit, bank guarantees and similar instruments issued for the account of the Parent Borrower or any Restricted Subsidiary in the ordinary course of business supporting obligations under workers’ compensation, health, disability, unemployment insurance and other social security laws;
(h) Indebtedness expressly permitted by the Approved Budget (including with respect to any Permitted Variances);
(i) [reserved];
(j) Indebtedness under (i) the Pre-Petition ABL Credit Agreement and (ii) if applicable, the ABL Credit Agreement in an aggregate principal amount not to exceed $400,000,000 at any time outstanding;
(viiik) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
(ix) Indebtedness owed to any Person (including obligations Loan Parties in respect of letters surety bonds (whether bid, performance, appeal or otherwise) and performance and completion guarantees and other obligations of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Persona like nature, in each case incurred in the ordinary course of business;
(xl) [reserved];
(m) [reserved];
(n) [reserved];
(o) [reserved];
(p) other unsecured Indebtedness in an aggregate principal amount not to exceed at the time of incurrence thereof $4,000,000;
(q) Indebtedness consisting of (i) the Borrower or any Subsidiary financing of insurance premiums and (ii) take-or-pay obligations contained in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations (other than in respect of other Indebtedness)supply arrangements, in each case provided case, in the ordinary course of business;
(xir) obligations under any agreement governing the provision of treasury or cash management services, including deposit accounts, overnight draft, credit cards, debit cards, p-cards (including purchasing cards and commercial cards), funds transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade finance services and other cash management services; and
(s) Indebtedness in respect the form of Swap Agreements permitted by under Section 10.6.;
(xii) Capital Lease Obligations 6.07. The accrual of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basisinterest, the Leverage Ratio as defined accretion of accreted value and the payment of interest or dividends in the Existing Credit Agreement shall not exceed form of additional Indebtedness or Disqualified Stock, as applicable, the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than accretion of original issue discount, the accretion of liquidation preference and increases in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will outstanding solely as a result of fluctuations in the exchange rate of currencies shall not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted deemed to be created, incurred an incurrence of Indebtedness or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings Disqualified Stock for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amountthis Section 6.01.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The None of the U.S. Borrower or any Restricted Subsidiary will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) (A) Indebtedness created under the Loan Documents, (B) any Credit Agreement Refinancing Indebtedness and (C) Refinancing Indebtedness in respect of any such Credit Agreement Refinancing Indebtedness;
(ii) (A) any Indebtedness of any Loan Party; provided, that at the time of the incurrence thereof, (1) no Event of Default shall have occurred and be continuing, both immediately prior to and immediately after giving effect to the incurrence of such Indebtedness, (2) such Indebtedness shall comply with the Required Debt Parameters, (3) after giving Pro Forma Effect to the incurrence of such Indebtedness and the use of proceeds thereof, the U.S. Borrower shall be in Pro Forma Compliance with each Financial Maintenance Covenant, in each case recomputed as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of any such financial statements, the last day of the last fiscal quarter included in the Pro Forma Financial Statements) and (4) in the case of Indebtedness in an aggregate principal amount greater than or equal to $25,000,000, the Administrative Agent shall have received a certificate of an Authorized Officer of the U.S. Borrower, dated the date of incurrence of such Indebtedness, confirming compliance with the conditions set forth in the proviso to this clause (ii)(A) and setting forth reasonably detailed calculations in support thereof and (B) any Refinancing Indebtedness in respect of any Indebtedness permitted under clause (A) above or under this clause (B);
(iii) Indebtedness existing on the Effective Signing Date and set forth on Schedule 6.01 and Refinancing Indebtedness in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replaced;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of (A) the U.S. Borrower to or any Subsidiary and of any Restricted Subsidiary to the U.S. Borrower or any other Restricted Subsidiary, ; provided (A) that any such Indebtedness of owing by any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Restricted Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii))unsecured, (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Restricted Subsidiary that is not a Loan Party shall be subject owing to Section 10.4. any other Restricted Subsidiary that is not a Loan Party and (C) Guarantees to the extent permitted under this clause by Section 6.04, any Restricted Subsidiary that is not a Loan Party owing to any Loan Party; provided that any such Indebtedness shall be evidenced by the Intercompany Note;
(v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the ObligationsGuarantees incurred in compliance with Section 6.04;
(Avi) Indebtedness (including Capital Lease Obligations and Synthetic Lease Obligations) of the U.S. Borrower or any Restricted Subsidiary (A) incurred to finance the acquisition, construction construction, repair, replacement, expansion or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, ; provided that such Indebtedness is incurred prior to or within 90 270 days after such acquisition or the completion of such construction construction, repair, replacement, expansion or improvement, improvement and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements Indebtedness does not exceed the principal cost of acquiring, constructing, repairing, replacing, expanding or improving such fixed or capital assets (it being understood that property subject to a Capital Lease Obligation not entered into as part of a Sale/Leaseback Transaction will be deemed acquired at the time such Capital Lease Obligation becomes effective) or (B) assumed in connection with the acquisition of any fixed or capital assets, and Refinancing Indebtedness in respect of any of the Indebtedness being extendedforegoing; provided that, renewed immediately after the incurrence or replaced (plus any accrued but unpaid interest and premium thereon); providedassumption of such Indebtedness, however, that the aggregate principal amount of Indebtedness permitted by (including Capital Lease Obligations and Synthetic Lease Obligations and Refinancing Indebtedness) incurred in reliance on and then outstanding under this clause (vi) shall not exceed the greater of $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on 25,000,000 or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion 2.5% of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective DateConsolidated Total Assets;
(vii1) Indebtedness of any Person that becomes a Restricted Subsidiary (or of any Person not previously a Restricted Subsidiary that is merged or consolidated with or into a Restricted Subsidiary) in a transaction permitted under this Agreement, (2) Indebtedness of any Person that is assumed by the U.S. Borrower or any Restricted Subsidiary in connection with an acquisition of assets by the U.S. Borrower or any Restricted Subsidiary in a Permitted Acquisition or other similar Investment permitted by Section 6.04 or (3) Refinancing Indebtedness of any of the foregoing; provided that, in the case of Indebtedness referred to in clauses (1) and (2) above:
(A) both immediately before and immediately after October 6giving effect thereto, 2006 but no Event of Default shall have occurred and be continuing;
(B) after giving Pro Forma Effect to the incurrence or assumption of such Indebtedness, the U.S. Borrower shall be in Pro Forma Compliance with each Financial Maintenance Covenant, in each case recomputed as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the Fifth Amendment Effective Datedelivery of any such financial statements, provided the last day of the last fiscal quarter included in the Pro Forma Financial Statements);
(C) with respect to any Indebtedness of any Person that becomes a Restricted Subsidiary (or of any Person not previously a Restricted Subsidiary that is merged or consolidated with or into a Restricted Subsidiary) or Indebtedness of any Person that is assumed by the U.S. Borrower or any Restricted Subsidiary in connection with the acquisition of assets by the U.S. Borrower or any Restricted Subsidiary, such Indebtedness exists existed at the time such Person becomes became a Restricted Subsidiary and or at the time such assets were acquired and, in each case, was not created in contemplation of thereof or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced therewith;
(plus any accrued but unpaid interest and redemption premium thereon), provided that D) the aggregate principal amount of all Indebtedness permitted incurred and outstanding under this Section 6.01(a)(vii) by this clause (vii) Restricted Subsidiaries that are not Loan Parties, when aggregated with the aggregate principal amount of all Indebtedness of Restricted Subsidiaries that are not Loan Parties incurred and outstanding under Section 6.01(a)(xii), shall not exceed $5,000,000 at any time outstanding;exceed the greater of $75,000,000 and 7.5% Consolidated Total Assets, calculated on a Pro Forma Basis giving effect to the application of proceeds of the applicable Indebtedness, as of the last day of the then most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of any such financial statements, the last day of the last fiscal quarter included in the Pro Forma Financial Statements); and
(E) the Administrative Agent shall have received a certificate of an Authorized Officer of the U.S. Borrower, dated the date of incurrence or assumption of such Indebtedness, confirming compliance with the conditions set forth in clauses (A), (B), (C) and (D), and setting forth reasonably detailed calculations in support thereof.
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Cash Management Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
(ix) Indebtedness owed to any Person (including obligations in respect of letters of netting services, automatic clearing house arrangements, employees’ credit for the benefit of such Person) providing workers’ compensationor purchase cards, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Personoverdraft protections and similar arrangements, in each case incurred in the ordinary course of business; provided that such Indebtedness (other than with respect to credit or purchase cards) shall be repaid in full within ten Business Days of the incurrence thereof;
(ix) Indebtedness in respect of (A) letters of credit, bankers’ acceptances, bank guarantees or similar instruments or facilities issued for the account of the U.S. Borrower or any Restricted Subsidiary in the ordinary course of business supporting obligations under workers’ compensation, unemployment insurance and other social security laws and (B) bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and obligations of a like nature incurred in the ordinary course of business and not in connection with the borrowing of money;
(x) Indebtedness of the U.S. Borrower or any Restricted Subsidiary in respect the form of performance bondsindemnifications, bid bondspurchase price adjustments, appeal bondsearn-outs, surety bonds, performance and completion guarantees and non-competition agreements or other arrangements representing acquisition consideration or deferred payments of a similar obligations (nature incurred in connection with any Permitted Acquisition or other than in respect of other Indebtedness), in each case provided in the ordinary course of businessInvestment permitted by Section 6.04;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.[reserved];
(xii) Capital Lease Obligations Indebtedness of the Borrower or any Restricted Subsidiary that is not a Subsidiary Loan Party in an aggregate principal amount, when aggregated with the aggregate principal amount of all Indebtedness of Restricted Subsidiaries that are not Loan Parties incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable outstanding under Section 10.11.(a6.01(a)(vii), not exceeding the greater of $75,000,000 and 7.5% Consolidated Total Assets at any time outstanding;
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes Parties in an aggregate principal amount not exceeding the greater of $150,000,000 (plus an over allotment of up to 15.0%) 100,000,000 and 10% Consolidated Total Assets at any time outstanding.;
(cxiv) Neither Holdings nor unsecured Indebtedness in respect of (A) obligations of the U.S. Borrower willor any Restricted Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not in connection with the borrowing of money and (B) intercompany obligations of the U.S. Borrower or any Restricted Subsidiary in respect of accounts payable incurred in connection with goods sold or services rendered in the ordinary course of business and not in connection with the borrowing of money;
(xv) obligations of the U.S. Borrower or any Restricted Subsidiary to pay insurance premiums arising in the ordinary course of business and not in connection with the borrowing of money;
(xvi) unsecured Indebtedness consisting of promissory notes issued by any Loan Party to current or former officers, nor will they permit any Subsidiary tomanagers, issue consultants, directors and employees (or permit their spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) to remain outstanding any Preferred finance the purchase or redemption of Equity Interests except of the U.S. Borrower, in each case to the case extent permitted by Section 6.08;
(xvii) to the extent constituting Indebtedness, Hedging Obligations pursuant to Hedging Agreements entered into to hedge or mitigate risks to which the U.S. Borrower or any Restricted Subsidiary has actual exposure (other than in respect of Holdings Equity Interests or the Borrower (or, in the case credit risk associated with Indebtedness of the Trust Preferred Securities, MHG Capital Trust IU.S. Borrower or any Restricted Subsidiary), Preferred Equity Interests that are Qualified Equity Interests including without limitation to effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to another floating rate or otherwise) or currencies with respect to any interest-bearing liability or investment of the U.S. Borrower or any Restricted Subsidiary;
(xviii) (x) Indebtedness incurred in connection with Permitted Securitization Financings in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by outstanding that, immediately after giving effect to the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation incurrence of such amountIndebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(a)(xviii) would not exceed the greater of $50,000,000 and 5.0% of Consolidated Total Assets when incurred, created or assumed and (y) any Refinancing Indebtedness in respect thereof; and
(xix) all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (i) through (xviii) above.
Appears in 1 contract
Samples: Credit Agreement (Ingevity Corp)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan DocumentsDocuments (including any Guarantees thereof);
(ii) the Senior Subordinated Debt and Refinancing Indebtedness in respect thereof;
(1iii) Indebtedness existing on the Effective Date date hereof and set forth in Schedule 10.1.(a), (2) 6.01 and Refinancing Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replaced;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower owed to any Subsidiary and of any Subsidiary owed to the Borrower or any other Subsidiary, ; provided that (Ai) that any such Indebtedness owed by a Loan Party is subordinated to the Obligations pursuant to the Affiliate Subordination Agreement and (ii) Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. 6.04; and provided, further, that (A) Indebtedness owed to any Insurance Subsidiary by the Borrower or any other Subsidiary shall be limited in principal amount to the aggregate amount of Investments made in such Insurance Subsidiary pursuant to Section 6.04(s) and (B) notwithstanding the first proviso above, such Indebtedness of the Borrower owed to any Insurance Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall only be subordinated to the Obligations on terms reasonably satisfactory to the Agentextent permitted by applicable laws or regulations;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and Subsidiary, by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, Subsidiary and by any Subsidiary Loan Party of Indebtedness of the Borrower; provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations6.04;
(Avi) Indebtedness of the Borrower or any Subsidiary (a) incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by an amount not greater than fees and expenses, including premium and defeasance costs, associated therewith) or result in a decreased average weighted life thereof, provided that such Indebtedness is incurred prior to or within 90 180 days after such acquisition or the completion of such construction or improvement, or (b) constituting a Capital Lease Obligation as part of a sale and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon)leaseback transaction permitted by Section 6.06; provided, however, provided that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, exceed the greater of $20,000,000 and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion 3.25% of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective DateConsolidated Total Assets;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6the date hereof, 2006 but prior to and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the Fifth Amendment Effective Dateoutstanding principal amount thereof (other than by an amount not greater than fees and expenses, including premium and defeasance costs, associated therewith), add any new obligor or security therefor or result in a decreased average weighted life thereof; provided that (A) such acquired Indebtedness exists at the time such Person becomes a Subsidiary and was is not created in contemplation of or in connection with such Person becoming a Subsidiary (except to the extent such acquired Indebtedness refinanced other Indebtedness to facilitate such entity becoming a Subsidiary, ) and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that B) the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 at any time outstandingexceed the greater of $25,000,000 and 4.00% of Consolidated Total Assets;
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
(ix) Indebtedness owed to any Person (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of such Personof) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insuranceinsurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such Personperson, provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations are reimbursed not later than 30 days following such incurrence;
(ix) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in each case incurred the ordinary course of business or other cash management services in the ordinary course of business;
, provided that (xi) such 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 credit or purchase cards) is extinguished within ten Business Days of other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amount.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan DocumentsDocuments or any Credit Agreement Refinancing Indebtedness (including pursuant to any Refinancing Amendment);
(ii) [Reserved];
(1iii) Indebtedness of AC Holdings and any of its subsidiaries that are Loan Parties in respect of the AC Holdings Bonds;
(iv) Indebtedness (other than Indebtedness permitted under clause (ii) or (iii) of this paragraph (a)) existing on the Sixth ARCA Effective Date and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replaced6.01;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(ivv) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary, ; provided that (A) that any such Indebtedness of any Subsidiary that is not a Loan Collateral Support Party to the Borrower or any Subsidiary that is a Loan Collateral Support Party shall be subject to Section 10.4. and 6.04, (B) Indebtedness of except to the Borrower to extent any Subsidiary Regulatory Authorization would be required therefor and has not been obtained, any such Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party Guarantor shall be subordinated to the Facility Obligations on terms reasonably satisfactory to the Administrative Agent, and (C) any such Indebtedness owed to any Loan Party and evidenced by a promissory note shall be pledged pursuant to clause (b) of the definition of “Collateral and Guarantee Requirement”;
(vvi) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other SubsidiarySubsidiary (other than Indebtedness permitted solely pursuant to clauses (a)(iii) (except for Guarantees of the AC Holdings Bonds by any of its subsidiaries that is a Loan Party to the extent required under the AC Holdings Indenture as in effect on the Sixth ARCA Effective Date), (a)(iv), (a)(viii) (except for unsecured Guarantees of the PAETEC Notes by the Borrower) or (a)(xx) or any combination thereof); provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Collateral Support Party of Indebtedness of any Subsidiary that is not a Loan Collateral Support Party shall be subject to Section 10.4. and 6.04, (CB) Guarantees permitted under this clause (vvi) shall be subordinated to the Secured Obligations of the applicable Subsidiary that is a Loan Party if and to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the ObligationsSecured Obligations and (C) no Indebtedness shall be Guaranteed by any Subsidiary unless such Subsidiary is a Loan Party that has Guaranteed the Secured Obligations pursuant to the Guarantee Agreement;
(Avii) Indebtedness of the Borrower or any Subsidiary Wireline Company incurred to finance the acquisition, construction construction, restoration or improvement of any fixed or capital assets, including Capital Lease Obligations (whether through the direct acquisition of such assets or the acquisition of Equity Interests in a Person holding only such fixed or capital assets) and any Indebtedness assumed by the Borrower or any Subsidiary Wireline Company in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, ; provided that (A) such Indebtedness is incurred (or if assumed, was incurred) prior to or within 90 150 days after such acquisition or the completion of such construction construction, restoration or improvement, improvement and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 250,000,000 at any time outstanding;
(viii) Indebtedness of any Person that becomes a Subsidiary after the Sixth ARCA Effective Date; provided that (A) such Indebtedness exists at the time such Person becomes a Guarantee by the Borrower Subsidiary and is not created in contemplation of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations or in connection with such Person becoming a Subsidiary and (B) other unsecured the Borrower is in compliance on a Pro Forma Basis after giving effect to such Indebtedness with the covenants contained in Sections 6.13 and 6.14 recomputed as of the Borrower last day of the most-recently ended Fiscal Quarter for which financial statements have been delivered or any Subsidiary incurred were required to be delivered pursuant to Section 5.01(a) or (b) prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 time at any time outstandingwhich such Person becomes a Subsidiary;
(ix) Indebtedness owed to of the Borrower assumed by operation of law or otherwise as a direct result of the merger of any Person (including a “Merged Person”) with and into the Borrower (with the Borrower being the surviving entity) in a transaction otherwise permitted under this Agreement; provided that (A) such Indebtedness was Indebtedness of the Merged Person as of the effectiveness of such merger and is not created in contemplation of or in connection with such merger and (B) the Borrower is in compliance on a Pro Forma Basis after giving effect to such Indebtedness with the covenants contained in Sections 6.13 and 6.14 recomputed as of the last day of the most-recently ended Fiscal Quarter for which financial statements have been delivered or were required to be delivered pursuant to Section 5.01(a) or (b) prior to the time of such merger;
(x) Indebtedness of any Wireline Company constituting reimbursement obligations with respect to letters of credit in respect of workers’ compensation claims or self-insurance obligations;
(xi) Indebtedness of any Wireline Company constituting reimbursement obligations with respect to letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred issued in the ordinary course of business; provided that, upon the drawing of such letters of credit or the incurrence of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or incurrence;
(xxii) 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 other IndebtednessIndebtedness for borrowed money), in each case provided in the ordinary course of business;
(xixiii) Indebtedness in respect of Swap Agreements permitted by Section 10.6.6.07;
(xiixiv) Capital Lease Obligations Indebtedness of any Wireline Company arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided, however, that such Indebtedness is extinguished within five Business Days of its incurrence;
(xv) Indebtedness of any Wireline Company arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of any Wireline Company pursuant to any such agreements, in any case incurred in connection with the disposition of any business, assets or any Subsidiary (other than Guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Subsidiary for the purpose of financing such acquisition), so long as the principal amount of such Indebtedness does not exceed the gross proceeds actually received by the Wireline Companies in connection with such disposition;
(xvi) any Earn-out Obligation or obligation in respect of any purchase price adjustment, except to the extent that the contingent consideration relating thereto is not paid within 15 Business Days after the contingency relating thereto is resolved;
(xvii) Permitted Refinancing Indebtedness of any Wireline Company incurred in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than Indebtedness of the Borrower to any Subsidiary or of any Subsidiary to the Borrower or any Subsidiary other Subsidiary) that was permitted to be incurred under clause (i), (ii), (iii), (iv), (vii), (viii) or (ix) or this clause (xvii) of this paragraph;
(xviii) Permitted Pari Passu Indebtedness; provided that at the time of incurrence of any Permitted Pari Passu Indebtedness, (1) the Secured(other than any Permitted Pari Passu Indebtedness the proceeds of which are incurred prior used substantially simultaneously with the incurrence thereof solely to prepay or repay, in whole or in part, the Fifth Amendment Effective Date Term Loans or Revolving Loans and result from so long as, in connection with any arrangement whereby such prepayment or repayment of Revolving Loans, the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially Revolving Commitments are permanently reduced by the same purpose or purposes as the property sold or transferred if, on the date amount of such incurrence repayment), (1) the First Lien Leverage Ratio on a Pro Forma Basis, Basis computed as of the Leverage Ratio as defined in last day of the Existing Credit Agreement most recently-ended Fiscal Quarter for which financial statements have been delivered pursuant to Section 5.01(a) or (b) shall not exceed 2.25 to 1.0 and (2) the ratio then applicable under Section 10.11.(aBorrower shall have delivered a certificate of a Financial Officer to the effect set forth in the preceding clause (1), together with reasonably detailed calculations demonstrating compliance with the preceding clause (1);
(xiiixix) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case Indebtedness incurred in connection with investments or Indebtedness otherwise permitted under this Agreement; andthe financing of insurance premiums in the ordinary course of business;
(xivxx) Guarantees by the Borrower or any Subsidiary of: (A) other Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests Wireline Company in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that (A) no Event of Default has occurred and is continuing or would result therefrom and (B) the Borrower is in compliance on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness with the covenants contained in Sections 6.13 and 6.14 recomputed as of the last day of the most-recently ended Fiscal Quarter for which financial statements have been delivered or were required to be delivered pursuant to Section 5.01(a) or (b) prior to the issuance of such Indebtedness;
(xxi) Indebtedness in connection with Permitted Receivables Financings; provided that the aggregate principal amount of Indebtedness at any time outstanding under this Section 6.01(a)(xxi) shall not exceed $500,000,000; and
(1) Permitted Additional Debt; provided that (A) no Event of Default has occurred and is continuing or would result therefrom and (B) the Borrower is in compliance on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness with the covenants contained in Sections 6.13 and 6.14 recomputed as of the last day of the most-recently ended Fiscal Quarter for which financial statements have been delivered or were required to be delivered pursuant to Section 5.01(a) or (b) prior to the issuance of such Indebtedness and
(2) Permitted Refinancing Indebtedness in respect of Permitted Additional Debt previously incurred under clause (1) (including, without limitation, the Permitted Additional Debt listed on Schedule 6.01) or Indebtedness previously incurred under this clause (2); provided that unsecured Indebtedness in the form of a bridge loan financing (or any “exchange notes” to be issued therefor) that (A) would constitute Permitted Additional Debt (other than with respect to final maturity date and as set forth below) and (B) would constitute Permitted Refinancing Indebtedness in respect of Indebtedness previously incurred under clause (1) or under this clause (2), in the case of either (A) or (B) above but for the inclusion in the documentation governing such Indebtedness of (x) certain negative covenants that are more restrictive than those included in this Agreement and/or (y) a Mandatory Prepayment Provision (it being agreed that any such Preferred Equity Interests issued mandatory prepayment provision shall be deemed not materially more restrictive that the covenants contained in this Agreement), in each case to the extent such provisions are customary for bridge financings (as determined by a Financial Officer in good faith) shall also be permitted under this clause (2) (and any such Indebtedness shall be deemed to constitute Permitted Refinancing Indebtedness for all purposes of this Agreement).; and
(xxiii) Permitted Junior Lien Indebtedness; provided that the proceeds of such Permitted Junior Lien Indebtedness are used not later than 120 days after the incurrence thereof solely to prepay, repay, refinance, exchange, redeem or replace other Indebtedness of the Borrower or any of its Subsidiaries, and so long as, in connection with any such prepayment, repayment, refinancing, exchange, redemption or replacement of such Indebtedness in the form of revolving loans (including the Revolving Loans), the revolving commitments in respect thereof (including the Revolving Commitments) are permanently reduced by the amount of such prepayment, repayment, refinancing or replacement; provided further that the proceeding proviso shall not apply if, at the time of incurrence of such Permitted Junior Lien Indebtedness, the Leverage Ratio on a Pro Forma Basis computed as of the last day of the most recently-ended Fiscal Quarter for which financial statements have been delivered pursuant to Section 5.01(a) or (b) shall not exceed 3.75 to 1.0 and the Borrower shall have delivered a certificate of a Financial Officer to Holdings the effect set forth in this proviso, together with reasonably detailed calculations demonstrating compliance with the foregoing.
(b) If any Indebtedness is incurred pursuant to clause (viii), (ix), (xx), or (xxii)(1) of paragraph (a) of this Section in an aggregate principal amount exceeding $250,000,000, the Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer to such effect, together with all relevant financial information reasonably requested by the Administrative Agent, including reasonably detailed calculations demonstrating compliance with such covenants (which calculations shall, if made as of the last day of any Fiscal Quarter for purposes which the Borrower has not delivered to the Administrative Agent the financial statements and certificate of matching Preferred Equity Interests issued a Financial Officer required to be delivered by Holdings shall Section 5.01(a) or (b) and Section 5.01(c), respectively, be excluded from the accompanied by a reasonably detailed calculation of such amountConsolidated Adjusted EBITDA and Consolidated Cash Interest Expense for the relevant period).
(c) No Subsidiary will issue any Preferred Stock.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower Company will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1) Indebtedness existing on the Effective Date date hereof and set forth on Schedule 6.01 and Refinancing Indebtedness in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replacedthereof;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower Company to any Subsidiary and of any Subsidiary to the Borrower Company or any other Subsidiary, ; provided that (A) such Indebtedness shall not have been transferred to any Person other than the Company or any Subsidiary, (B) any such Indebtedness owing by any Loan Party shall be unsecured and subordinated in right of payment to the Loan Document Obligations on terms customary for intercompany subordinated Indebtedness, as reasonably determined by the Administrative Agent, (C) any such Indebtedness owing to any Loan Party shall be evidenced by a promissory note (which may be a global promissory note) that shall have been pledged pursuant to the Collateral Agreement and (D) any such Indebtedness of owing by any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to incurred in compliance with Section 10.4. and 6.04;
(Biv) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the AgentGuarantees incurred in compliance with Section 6.04;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower Company or any other Subsidiary, provided that Subsidiary (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
(A) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereofSynthetic Lease Obligations, provided that such Indebtedness is incurred prior to or within 90 180 days after such acquisition or the completion of such construction or improvement, improvement and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements Indebtedness does not exceed the principal cost of acquiring, constructing or improving such fixed or capital assets or (B) assumed in connection with the acquisition of any fixed or capital assets, and Refinancing Indebtedness in respect of any of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), foregoing; provided that the aggregate principal amount of Indebtedness permitted by this clause (viiv) shall not exceed $5,000,000 20,000,000 at any time outstanding;
(vi) Indebtedness in respect of netting services, overdraft protections (in an aggregate amount not to exceed $1,000,000 at any time outstanding) and otherwise in connection with deposit and checking accounts;
(vii) Indebtedness in respect of letters of credit, bank guarantees and similar instruments issued for the account of the Company or any Subsidiary in the ordinary course of business supporting obligations under workers’ compensation, unemployment insurance and other social security laws;
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower Company or any Subsidiary in the form of purchase price adjustments or earn-outs incurred prior to in connection with any Permitted Acquisition or other Investment permitted by Section 6.04;
(ix) the Fifth Amendment Effective Date Acquired Company Convertible Notes;
(x) Permitted Revolving Indebtedness in an aggregate principal amount not exceeding to exceed $5,000,000 300,000,000 at any time outstanding;
(ixxi) Indebtedness owed to any Person (including obligations of Loan Parties in respect of letters surety bonds (whether bid performance or otherwise) and other obligations of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Persona like nature, in each case incurred in the ordinary course of business;
(x) 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 other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;; and
(xii) Capital Lease Obligations other Indebtedness of the Borrower Company or any Subsidiary that are incurred Subsidiary; provided that, after giving effect to the incurrence of such Indebtedness and any related transaction on a Pro Forma Basis the Total Leverage Ratio shall not exceed 2.50 to 1.00 and the Company shall be in Pro Forma Compliance (in each case calculated as of the last day of the fiscal quarter of the Company then most recently ended for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) (or prior to the Fifth Amendment Effective Date first such delivery, as of April 28, 2012), provided that, for purposes of the foregoing, the Total Indebtedness and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes Senior Secured Indebtedness shall be determined on a Pro Forma Basis as the property sold or transferred if, on of the date of such incurrence on a Pro Forma Basis, incurrence); provided further that (A) the Leverage Ratio as defined in aggregate principal amount of Indebtedness of the Existing Credit Agreement Subsidiaries that are not Loan Parties permitted by this clause (xii) shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or $100,000,000 at any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters time outstanding and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the aggregate principal amount of Indebtedness guaranteed except permitted by an amount equal to any accrued but unpaid interest and redemption premium this clause (xii) that is secured by Liens on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the assets of the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount Parties may not exceeding exceed $150,000,000 (plus an over allotment of up to 15.0%) 20,000,000 at any time outstanding.
(cb) Neither Holdings nor the Borrower willThe Company will not, nor and will they not permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (orDisqualified Stock, other than, in the case of the Trust Preferred SecuritiesSubsidiaries, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstandingto the Company or a Subsidiary; provided that any such Preferred issuance of Equity Interests issued by the Borrower of any Subsidiary that is not a Loan Party to Holdings for purposes of matching Preferred Equity Interests issued by Holdings any Loan Party shall be excluded from the calculation of such amountsubject to Section 6.04.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Parent Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created or existing under this Credit Agreement and the other Loan Documents;
(ii) Indebtedness created or existing under the Senior Unsecured Loan Documents in an aggregate principal amount not to exceed $15,000,000;
(1iii) Indebtedness existing on the Effective Date date hereof and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), 7.01 and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), Indebtedness; provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose)replaced, (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereonthereon and fees and expenses related to such extensions, renewals and replacements thereof), and (C) shall not have an earlier maturity date or shorter decreased weighted average life than the Indebtedness being extended, renewed or replaced;
replaced and (iiiD) Additional Mortgage shall be subordinated to the Obligations on the same terms as the Indebtedness and extensions, renewals and replacements thereof, in each case incurred, being extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreementreplaced;
(iv) intercompany Indebtedness between and among members of the Consolidated Group to the extent permitted by Section 7.04; provided that Indebtedness of the any Borrower to any Subsidiary and of any Subsidiary to the Borrower or any (other Subsidiary, provided (Athan another Borrower) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent;
(v) Guarantees by members of the Borrower Consolidated Group in respect of Indebtedness of any Subsidiary and otherwise permitted hereunder; provided that Guarantees by any Subsidiary of Indebtedness of the Parent Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and 7.04, (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the ObligationsObligations and (D) neither the Senior Notes nor any Senior Notes Refinancing Indebtedness shall be Guaranteed by any Subsidiary, unless such Subsidiary is a Loan Party that has Guaranteed the Obligations pursuant to the Collateral Agreement;
(Avi) Indebtedness of the Parent Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (plus accrued interest and premium thereon); provided that (A) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, improvement and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 10,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(viiA) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, date hereof; provided that (1) such Indebtedness exists at the time such Person becomes a Subsidiary and was is not created in contemplation of or in connection with such Person becoming a Subsidiary, Subsidiary and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that 2) the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 3,000,000 at any time outstandingoutstanding (excluding Capital Lease Obligations under leases for vehicles) and (B) any refinancings, renewals and replacements of any such Indebtedness pursuant to the preceding clause (A) that do not increase the outstanding principal amount (plus accrued interest and premium and fees and expenses related to such refinancings, renewals and replacements thereof) thereof;
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 1,000,000 at any time outstanding; provided that the aggregate principal amount of Indebtedness of the Subsidiaries that are not Loan Parties permitted by this clause (viii) shall not exceed $500,000 at any time outstanding;
(ix) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(x) Indebtedness of the Parent 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 other Indebtedness)obligations, in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.7.07;
(xii) Capital Lease Obligations of (A) the Borrower or any Subsidiary that are incurred prior Senior Notes in an aggregate principal amount not to the Fifth Amendment Effective Date exceed $225,000,000 and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);(B) Senior Notes Refinancing Indebtedness; and
(xiii) (A) Guarantees and/or indemnities (other than the Seller Subordinated Note in respect of payment of an initial aggregate principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters amount not to exceed $10,000,000 and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this AgreementSeller Subordinated Note Refinancing Indebtedness; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings The Parent Borrower will not, and will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit preferred Equity Interests, except for (i) any preferred Equity Interest issued pursuant to remain the Shareholders Rights Plan and (ii) any preferred Equity Interest, the proceeds of which are used to prepay any amounts outstanding any Preferred Equity Interests except in under this Credit Agreement, the case of Holdings or other Loan Documents and the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amountSenior Unsecured Loan Documents.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower Company will not, and will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1) Indebtedness existing on the Fifth Restatement Effective Date and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one Section 6.01 of the other subsections of this Section 10.1.(a), Disclosure Letter and (3) extensions, renewals and replacements of any such Refinancing Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replacedthereof;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower Company to any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower Company or any other Restricted Subsidiary, ; provided that (A) that such Indebtedness of shall not have been transferred to any Subsidiary that is not a Person other than the Company or any Restricted Subsidiary, (B) any such Indebtedness owing by any Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Restricted Subsidiary that is not a Loan Party shall be unsecured and subordinated in right of payment to the Obligations on terms reasonably satisfactory to the Agentand (C) any such Indebtedness shall be incurred in compliance with Section 6.04;
(iv) Guarantees incurred in compliance with Section 6.04;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower Company or any other Subsidiary, provided that Restricted Subsidiary (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
(A) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereofSynthetic Lease Obligations, provided that such Indebtedness is incurred prior to or within 90 270 days after such acquisition or the completion of such construction or improvement, improvement and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements Indebtedness does not exceed the principal cost of acquiring, constructing or improving such fixed or capital assets or (B) assumed in connection with the acquisition of any fixed or capital assets, and Refinancing Indebtedness in respect of any of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), foregoing; provided that the aggregate principal amount of Indebtedness permitted by this clause (viiv) at the time of incurrence thereof shall not exceed the greater of (x) $5,000,000 75,000,000 and (y) 1.50% of Total Assets (determined at any the time outstandingof such incurrence);
(viiivi) (A) a Guarantee by Indebtedness in respect of netting services, overdraft protections and deposit and checking accounts, in each case, in the Borrower ordinary course of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstandingbusiness;
(ixvii) Indebtedness owed to any Person (including obligations in respect of letters of credit credit, bank guarantees and similar instruments issued for the benefit account of such Person) providing the Company or any Restricted Subsidiary in the ordinary course of business supporting obligations under workers’ compensation, health, disability disability, unemployment insurance and other social security laws;
(viii) Indebtedness of the Company or any Restricted Subsidiary in the form of bona fide purchase price adjustments, earn-outs, indemnification or other employee benefits similar obligations incurred in connection with any Permitted Acquisition or propertyother Investment permitted by Section 6.04;
(ix) [Reserved];
(A) Indebtedness of the Loan Parties under the Term Credit Agreement in an aggregate principal amount at any time outstanding not to exceed (x) together with the aggregate principal amount of Refinancing Indebtedness then outstanding under clause (B) below incurred in respect of Indebtedness originally incurred under this clause (A)(x), casualty $2,000,000,000 plus (y) an unlimited amount so long as, in the case of this clause (A)(y), after giving effect to the incurrence of such Indebtedness and any related transaction, on a Pro Forma Basis, the Senior Secured Leverage Ratio as of the last day of the most recent fiscal quarter of the Company for which financial statements have been (or liability insurance, are required to have been) delivered pursuant to reimbursement Section 5.01(a) or indemnification (b) shall not exceed 2.00 to 1.00 and (B) Refinancing Indebtedness in respect of Indebtedness incurred pursuant clause (A); provided that any such Indebtedness incurred in reliance on this clause (x), and any Guarantees in respect thereof, satisfy the requirements of, and constitute, Permitted Term Indebtedness;
(xi) Indebtedness of Loan Parties in respect of surety bonds (whether bid, performance, appeal or otherwise) and performance and completion guarantees and other obligations to such Personof a like nature, in each case incurred in the ordinary course of business;
(A) Permitted Unsecured Debt; provided that, after giving effect to the incurrence of such Indebtedness and any related transaction, on a Pro Forma Basis, the Interest Coverage Ratio shall be no less than 2.00 to 1.00 (calculated as of the last day of the fiscal quarter of the Company then most recently ended for which financial statements have been (or are required to have been) delivered pursuant to Section 5.01(a) or (b)); provided, further that the aggregate principal amount of Indebtedness of the Restricted Subsidiaries that are not Loan Parties permitted by this clause (xii) at the time of incurrence thereof shall not exceed the greater of (x) $75,000,000 and (y) 1.50% of Total Assets (determined at the time of such incurrence) and (B) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to clause (A);
(xiii) Indebtedness incurred under leases of real property in respect of tenant improvements;
(xiv) Indebtedness of a Restricted Subsidiary assumed in connection with any Permitted Acquisition (so long as (A) if secured, such Indebtedness is secured only by assets of the Borrower Person or Persons acquired pursuant to, or the assets acquired in, such Permitted Acquisition, (B) neither the Company nor any Restricted Subsidiary (other than, in the case of a Permitted Acquisition of one or more Persons, such Person or Persons and its or their respective subsidiaries) is an obligor with respect to such Indebtedness and (C) such Indebtedness is not incurred in contemplation of such Permitted Acquisition) and any Refinancing Indebtedness in respect thereof;
(xv) other Indebtedness in an aggregate principal amount not to exceed at the time of performance bonds, bid bonds, appeal bonds, surety bonds, performance incurrence thereof the greater of (A) $150,000,000 and completion guarantees (B) 3.00% of Total Assets (determined at the time of such incurrence);
(xvi) Indebtedness consisting of (A) the financing of insurance premiums and similar (B) take-or-pay obligations (other than contained in respect of other Indebtedness)supply arrangements, in each case provided case, in the ordinary course of business;
(xixvii) obligations under any agreement governing the provision of treasury or cash management services, including deposit accounts, overnight draft, credit cards, debit cards, p-cards (including purchasing cards and commercial cards), funds transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade finance services and other cash management services; and
(xviii) Indebtedness in respect the form of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness6.07.
(b) Holdings will The accrual of interest, the accretion of accreted value and the payment of interest or dividends in the form of additional Indebtedness or Disqualified Stock, as applicable, the accretion of original issue discount, the accretion of liquidation preference and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies shall not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted deemed to be created, incurred an incurrence of Indebtedness or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(vDisqualified Stock for purposes of Section 6.01(a), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower willFor purposes of determining compliance with this Section 6.01, nor will they permit (i) Indebtedness need not be permitted solely by reference to one category of permitted Indebtedness described in this Section 6.01 but may be permitted in part under any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except combination thereof and (ii) in the case event that an item of Holdings Indebtedness (or any portion thereof) (other than any item of Indebtedness set forth in Section 6.01(a)(i) or 6.01(a)(x)) meets the Borrower criteria of more than one clause of this Section 6.01 (orother than Section 6.01(a)(i) or 6.01(a)(x)), the Company, in the case Company’s sole discretion, will divide, classify or reclassify (or later divide, classify and reclassify) such item of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at Indebtedness (or any time outstanding; provided that any portion thereof) among such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amountclauses.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and nor will not it permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) [reserved];
(1iii) Indebtedness existing on the Effective Date date hereof and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replaced;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement6.01;
(iv) [reserved];
(v) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary, ; provided (A) that Indebtedness of any Subsidiary that is not a Loan Party or any Subsidiary Loan Party for which the Collateral and Guarantee Requirement has not been satisfied to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent6.04;
(vvi) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, ; provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party or any Subsidiary Loan Party for which the Collateral and Guarantee Requirement has not been satisfied shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
(A) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date6.04;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 at any time outstanding[reserved];
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstanding[reserved];
(ix) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business[reserved];
(x) [reserved];
(xi) Indebtedness of the Borrower or any Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, bid bonds, surety appeal bonds, surety bonds, performance or similar bonds and completion guarantees provided by the Borrower and the Subsidiaries in the ordinary course of their business;
(xii) [reserved];
(xiii) [reserved];
(xiv) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar obligations instrument inadvertently (other than except in respect the case of other Indebtedness)daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within 10 days of incurrence;
(xv) Indebtedness arising in each case provided connection with endorsement of instruments for deposit in the ordinary course of business;
(xixvi) Indebtedness incurred in respect connection with the financing of Swap Agreements permitted by Section 10.6.insurance premiums in an aggregate amount at any time outstanding not to exceed the premiums owed under such policy, if applicable;
(xiixvii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior contingent obligations to financial institutions, in each case to the Fifth Amendment Effective Date extent in the ordinary course of business and result from any arrangement whereby on terms and conditions which are within the Borrower general parameters customary in the banking industry, entered into to obtain cash management services or such Subsidiary sells or transfers any property, real or personal, used or useful deposit account overdraft protection services (in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property an amount similar to those offered for comparable services in the financial industry) or other property that it intends to use services in connection with the management or opening of deposit accounts or incurred as a result of endorsement of negotiable instruments for substantially the same purpose deposit or collection purposes as the property sold or transferred ifand other customary, on the date of such incurrence on a Pro Forma Basiscontingent obligations, the Leverage Ratio including obligations under Bank Products (as defined in the Existing ABL Credit Agreement shall not exceed as in effect on the ratio then applicable under Section 10.11.(a)date hereof) other than Hedging Agreements, of the Borrower and its Subsidiaries incurred in the ordinary course of business;
(xiiixviii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) unsecured guarantees by the Borrower or any Subsidiary in respect Loan Party of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect facility leases of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; andany Loan Party;
(xivxix) payment obligations of or Guarantees by the Borrower or any Subsidiary of: Loan Party with respect to any Hedging Agreement permitted under Section 6.07 hereof; provided that if such Hedging Agreement is related to interest rates, (A) such Hedging Agreement shall relate to payment obligations on Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee otherwise permitted to be incurred by the Loan Documents and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement the notional amount of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement Hedging Agreement shall not increase exceed the principal amount of the Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on which such Indebtedness.Hedging Agreement relates;
(bxx) Holdings Indebtedness of the Borrower, any Subsidiary Loan Party or any ABL Foreign Loan Party under the ABL Credit Agreement in an aggregate principal amount at any one time outstanding not to exceed $99,000,000; provided that the Borrower will not, and will not permit any Subsidiary to, create, incur, assume grant or permit to exist any Indebtedness except Lien on the ABL Priority Collateral that is contractually subordinated (iincluding pursuant to a last-out facility) or junior in priority to the Liens on the ABL Priority Collateral securing any of the “Loans” or any other “Obligations” (each as defined in the ABL Credit Agreement), unless such Lien on the ABL Priority Collateral is also contractually subordinated or junior in priority, in the same manner and to the same extent, to the Liens on ABL Priority Collateral securing the Obligations;
(xxi) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by of the Borrower or any Subsidiary Loan Party under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes Term Loan Credit Agreement in an aggregate principal amount not exceeding $150,000,000 the amount outstanding thereunder on the Closing Date;
(plus an over allotment xxii) [reserved]; and
(xxiii) Indebtedness of up to 15.0%) at any time outstandingthe Borrower outstanding on the Closing Date under the Convertible Notes.
(cb) Neither Holdings nor the The Borrower willwill not, nor will they it permit any Subsidiary to, issue any preferred stock or permit to remain outstanding any Preferred other preferred Equity Interests, except preferred stock or preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued held by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amountor any Subsidiary.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower Company will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1) Indebtedness existing on the Effective Date date hereof and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), 6.01 and (3) extensions, renewals and replacements of any such Indebtedness described that do not increase the outstanding principal amount thereof (except to the extent of any reasonable premiums, fees and expenses incurred in clause (1connection with any such extensions, renewals and replacements) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be result in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter decreased weighted average life than the Indebtedness being extended, renewed or replacedthereof;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower Company to any Subsidiary and of any Subsidiary to the Borrower Company or any other Subsidiary, ; provided (A) that Indebtedness of any Subsidiary that is not a Loan Party owing to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent6.04;
(viv) Guarantees by the Borrower Company of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower Company or any other Subsidiary, ; provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations6.04;
(Av) Indebtedness of the Borrower Company or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations (other than in respect of leased real property) and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (except to the extent of any reasonable premiums, fees and expenses incurred in connection with any such extensions, renewals and replacements) or result in an earlier maturity date or decreased weighted average life thereof; provided that (A) before and after giving effect to the incurrence of such Indebtedness, no Default or Event of Default shall have occurred and be continuing, (B) such Indebtedness is incurred prior to or within 90 180 days after such acquisition or the completion of such construction or improvement, improvement and (BC) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness incurred on or after the Effective Date and permitted by this clause (viv) and clause (vii) below, plus the aggregate book value of all assets sold after the Effective Date pursuant to sale and leaseback transactions permitted by clause (b) of Section 6.06 shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause 200,000,000;
(vi) that is Indebtedness of the Company or any Subsidiary incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned acquisition by the Borrower Company or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 the Effective Date of real property and improvements thereto (but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of inventory or in connection with such Person becoming a Subsidiaryother personal property located therein), and extensions, renewals and replacements of any such Indebtedness so long as that do not increase the outstanding principal amount thereof (except to the extent of any reasonable premiums, fees and expenses incurred in connection with any such extensions, renewals and replacements does not exceed replacements) or result in an earlier maturity date or decreased weighted average life thereof; provided that (A) before and after giving effect to the principal incurrence of such Indebtedness, no Default or Event of Default shall have occurred and be continuing,(B) the terms of such Indebtedness are commercially reasonable and (C) the secured recourse to the Company or any Subsidiary of such Indebtedness shall be limited to the value of the real property and improvements financed by such Indebtedness;
(vii) Indebtedness being extendedof the Company or any Subsidiary relating to purchase money security interests (as defined in the New York Uniform Commercial Code, renewed as amended); provided that, (A) before and after giving effect to the incurrence of such Indebtedness, no Default or replaced Event of Default shall have occurred and be continuing, and (plus any accrued but unpaid interest and redemption premium thereon), provided that B) the aggregate principal amount of Indebtedness permitted by this clause (vii) shall be subject to the limitation set forth in the proviso to clause (v) above.
(viii) Guarantees by the Company or any of its Subsidiaries of Indebtedness of third parties given in connection with the acquisition or improvement of real property for use in the business of the Company and its Subsidiaries not exceed exceeding $5,000,000 10,000,000 at any one time outstanding;
(viiiix) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall software licenses required to be subordinated to the Obligations to the same extent and reflected as indebtedness on the same terms Company's consolidated balance sheet in an aggregate amount not exceeding $10,000,000;
(x) liabilities for leases of real property characterized as the Indebtedness so Guaranteed is subordinated to the Obligations and for purposes of GAAP; and
(Bxi) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
(ix) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(x) 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 other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) 50,000,000 at any time outstanding.
(cb) Neither Holdings nor the Borrower willThe Company will not, nor will they the Company permit any Subsidiary to, issue any preferred stock or permit to remain outstanding any other preferred Equity Interests, other than Qualified Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amountStock.
Appears in 1 contract
Samples: Credit Agreement (Great Atlantic & Pacific Tea Co Inc)
Indebtedness; Certain Equity Securities. No Subsidiary (a) The Borrower will not, and will not permit other than any Subsidiary to, Loan Party) will create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1) Indebtedness existing on the Effective Date and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replaced;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary;
(ii) [Reserved];
(iii) Cash Management Obligations and other Indebtedness in respect of netting services, provided automatic clearing house arrangements, employees’ credit or purchase cards, overdraft protections and similar arrangements, in each case incurred in the ordinary course of business;
(A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (Biv) Indebtedness in respect of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and obligations of a like nature incurred in the Borrower to any Subsidiary ordinary course of business and Indebtedness not in connection with the borrowing of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agentmoney;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by in the form of indemnifications, purchase price adjustments, earn-outs, non-competition agreements or other arrangements representing acquisition consideration or deferred payments of a similar nature incurred in connection with any Subsidiary Permitted Acquisition or other similar Investment;
(vi) [Reserved];
(vii) unsecured Indebtedness in respect of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness intercompany obligations of any Subsidiary that is in respect of accounts payable incurred in connection with goods sold or services rendered in the ordinary course of business and not a Loan Party shall be subject in connection with the borrowing of money;
(viii) obligations of any Subsidiary to pay insurance premiums arising in the ordinary course of business and not in connection with the borrowing of money;
(ix) Hedging Obligations under any Hedging Agreements entered into in the ordinary course of business and not for speculative purposes;
(x) Indebtedness existing or contemplated on the Effective Date and set forth on Schedule 6.01 and Refinancing Indebtedness in respect thereof;
(xi) Indebtedness, whether or not secured, in an aggregate principal amount, together with (but without duplication of) the aggregate principal amount of any Indebtedness secured by Liens incurred in reliance on Section 6.02(xix), not to exceed the greater of (x) $500,000,000 and (y) 10.00% of Consolidated Net Tangible Assets as of the last day of the then most recently ended Test Period for which financial statements have been delivered pursuant to Section 10.4. and 5.01(a) or 5.01(b) (C) Guarantees permitted under this clause (v) shall be subordinated or, prior to the Obligations delivery of any such financial statements, the last day of the applicable Subsidiary that is a Loan Party to last fiscal quarter included in the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the ObligationsLatest Financial Statements);
(A) Indebtedness of the Borrower or any Subsidiary (x) incurred to finance the acquisition, construction construction, repair or improvement of any fixed or capital assets, including any Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereofObligations, provided that such Indebtedness is incurred prior to or within 90 270 days after such acquisition or the completion of such construction construction, repair or improvement, and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements Indebtedness does not exceed the principal cost of acquiring, constructing or improving such fixed or capital assets or (y) assumed in connection with the acquisition of any fixed or capital assets, (B) Indebtedness being extended, renewed or replaced (plus of any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount Subsidiary consisting of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstandingCapital Lease Obligations arising out of Sale/Leaseback Transactions, and (C) any Refinancing Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Datein respect thereof;
(viiA) Indebtedness of any Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Subsidiary in a transaction permitted or not prohibited hereunder), or Indebtedness of any Person that is assumed by any Subsidiary in connection with any Acquisition or similar Investment, in each case, after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary (or is so merged or consolidated) or such Acquisition or other Investment is consummated and was is not created in contemplation thereof (it being understood that the terms of this proviso shall not prohibit amendments to, or refinancings of, such Indebtedness arranged by the applicable seller, its affiliates or its equity holders in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness Acquisition or similar Investment so long as (x) the principal amount of amendments and modifications to such extensionsoriginal Indebtedness set forth in such amended or refinancing Indebtedness, renewals when taken as a whole, are not materially less favorable to the Borrower and replacements does not exceed the principal of the Indebtedness being extendedits Subsidiaries, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that y) the aggregate principal amount of such Indebtedness permitted by this clause is not increased and (viiz) shall no additional obligors are added in respect of such Indebtedness that were not exceed $5,000,000 at any time outstanding;
obligors in respect of the applicable original Indebtedness (viii) (A) a Guarantee by other than the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iiiapplicable Subsidiary referred to above)), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured any Refinancing Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstandingrespect thereof;
(ixxiv) Guarantees by any Subsidiary of Indebtedness owed of any other Subsidiary; provided, that a Subsidiary shall not Guarantee Indebtedness of any other Subsidiary that it would not have been permitted to any Person incur under this Section if it were a primary obligor thereon;
(including xv) obligations (i) in respect of letters of credit for the benefit of such Person) providing workers’ compensation, unemployment insurance (including premiums related thereto), other types of social security, pension obligations, vacation pay, health, disability or other employee benefits incurred in the ordinary course of business or property(ii) in respect of letters of credit, casualty banker’s acceptances, bank guarantees or liability insurancesimilar instruments or facilities to support any of the foregoing obligations;
(i) Guarantees of the obligations of suppliers, pursuant to reimbursement customers, licensees or indemnification sublicensees in the ordinary course of business, (ii) obligations to pay the deferred purchase price of goods or services or progress payments in connection with such Persongoods and services incurred in the ordinary course of business and (iii) obligations in respect of letters of credit, banker’s acceptances, surety bonds, performance bonds or similar instruments entered into in each case incurred the ordinary course of business and not in connection with the borrowing of money;
(xvii) obligations owing under incentive, supply, license, sublicense or similar agreements entered into in the ordinary course of business;
(xxviii) Indebtedness (i) deferred compensation to any current or former officers, directors, employees, members of management, managers or consultants of the Borrower or any Subsidiary in respect the ordinary course of performance bonds, bid bonds, appeal bonds, surety bonds, performance business and completion guarantees (ii) deferred compensation or other similar arrangements in connection with any Acquisition or any other Investment permitted or not prohibited hereunder;
(xix) customer deposits and similar obligations (other than in respect of other Indebtedness), in each case provided advance payments received from customers for goods and services in the ordinary course of business;
(xixx) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreementincurred by the owner of any Specified Property that is secured solely by a Lien on such Specified Property; and
(xivxxi) Guarantees by the Borrower all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) contingent interest on obligations described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except clauses (i) Indebtedness created under the Loan Documents, through (iixx) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstandingabove.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amount.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower will Loan Parties shall not, and will shall not permit any Subsidiary of their Subsidiaries to, create, incur, assume or permit to exist (including by way of Guarantee) any IndebtednessIndebtedness or enter into any Hedging Agreement, except:
(i) Indebtedness created incurred and outstanding under the Loan DocumentsDocuments (including, without limitation, under any Incremental Facility Amendment or Extension Amendment) and any refinancing of any portion thereof using the proceeds of Indebtedness qualifying as a Permitted Refinancing;
(ii) (1) Indebtedness existing on the Effective Date to Remain Outstanding and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replacedPermitted Refinancing thereof;
(iii) Additional Mortgage (x) Indebtedness of any Loan Party owed to any other Loan Party or to any Non-Loan Party, (y) Indebtedness of any Non-Loan Party owed to any other Non-Loan Party, and extensions(z) Indebtedness of any Non-Loan Party owed to any Loan Party in an aggregate principal amount outstanding at any time not to exceed, renewals when taken together with investments then outstanding pursuant to Section 6.04(xiv) and replacements thereof(xv) and Guarantees then outstanding pursuant to clause (iv)(z) below, in each case incurred, extended, renewed or replaced prior to 25% of Consolidated Total Assets at the Fifth Amendment Effective Date if, on the date time of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreementincurrence;
(iv) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary, provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent;
(vx) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a other Loan Party, (y) Guarantees by any Non-Loan Party shall be subject of Indebtedness of any Loan Party or any other Non-Loan Party, and (z) Guarantees by any Loan Party of Indebtedness of any Non-Loan Party so that aggregate outstanding principal amount guaranteed thereunder at any time does not exceed, when taken together with the aggregate amount of investments then outstanding pursuant to Section 10.4. 6.04(xiv) and (Cxv) Guarantees permitted and the aggregate principal amount of Indebtedness then outstanding incurred pursuant to clause (iii)(z) above, an amount equal to 25% of Consolidated Total Assets at the time of incurrence, in each case under this clause (v) shall be subordinated iv), to the Obligations extent such Indebtedness was permitted to be incurred hereunder, and if such Indebtedness is subordinated in right of the applicable Subsidiary that is a Loan Party payment to the same extent and on Secured Obligations under the same terms Loan Documents, such Guarantee is at least as the Indebtedness so Guaranteed is subordinated in right of payment to the Secured Obligations;
(Av) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided that such Indebtedness is extinguished within five Business Days of its incurrence;
(vi) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased Weighted Average Life to Maturity thereof; provided that (A) such Indebtedness is incurred prior to or within 90 180 days after such acquisition or the completion of such construction or improvement, improvement and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed the greater of $5,000,000 250,000,000 and 5.5% of the Consolidated Total Assets at any the time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries incurrence as of the Fifth Amendment Effective Datelast day of the most recent Fiscal Quarter or, as applicable, Fiscal Year for which financial statements have been delivered in accordance with Section 5.01;
(vii) Indebtedness Hedging Agreements entered into in the ordinary course of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary business and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 at any time outstandingfor speculative purposes;
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
(ix) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such of) any Person) , including any Insurance Subsidiary, providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including medical malpractice, other professional and general liability insurance, ) to Borrower or any Subsidiary pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(xix) Indebtedness of the Borrower or any Subsidiary in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees bonds and similar obligations (other than in respect and trade-related letters of other Indebtedness)credit, in each case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(x) Indebtedness arising from agreements of Borrower or any Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or Subsidiary, other than Guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition;
(xi) Indebtedness of a Person existing at the time such Person becomes a Subsidiary of Borrower in respect connection with a Permitted Acquisition in an aggregate principal amount not to exceed, together with any Permitted Refinancing referred to below, $100,000,000, but only if such Indebtedness was not created or incurred in contemplation of Swap Agreements permitted by Section 10.6.such Person becoming a Subsidiary; provided that (x) no Default shall have occurred or be continuing or would result therefrom and (y) after giving effect to the incurrence of such Indebtedness (and any other Indebtedness incurred since the last day of the immediately preceding Test Period) on a pro forma basis as if such acquisition was consummated and such indebtedness was incurred on the first day of the immediately preceding Test Period (but tested as if the applicable ratio were the ratio for the next succeeding Test Period), Borrower would be in compliance with the Financial Covenant, and any Permitted Refinancing of any such Indebtedness;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary unsecured Indebtedness; provided that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of incurrence thereof, (x) no Default shall have occurred or be continuing or would result therefrom and (y) after giving effect to the incurrence of such incurrence Indebtedness (and any other Indebtedness incurred since the last day of the immediately preceding Test Period) on a Pro Forma Basispro forma basis as if such Indebtedness was incurred on the first day of the immediately preceding Test Period (but tested as if the applicable ratio were the ratio for the next succeeding Test Period), the Borrower’s Total Leverage Ratio as defined in would be at least 0.25:1.00 less than the Existing Credit Agreement maximum permitted Total Leverage Ratio under the then applicable Financial Covenant, and any Permitted Refinancing of any such unsecured Indebtedness; provided further that any such unsecured Indebtedness at Non-Loan Parties shall not exceed in an aggregate principal amount $75,000,000 at the ratio then applicable under Section 10.11.(a);time of incurrence.
(xiii) Indebtedness pursuant to any Permitted Receivables Transaction;
(Axiv) Guarantees and/or indemnities Incremental Substitute Indebtedness; and
(other than xv) Indebtedness in respect of payment of principal or interest) by the Borrower or any Subsidiary Secured Cash Management Agreements and other Indebtedness in respect of capital contributionsnetting services, project completions overdraft protections and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), similar arrangements in each case in connection with investments or cash management and deposit accounts incurred in the ordinary course of business. The accrual of interest, the accretion of accreted value and the payment of interest in the form of additional Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is shall not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior be deemed to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement be an incurrence of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount for purposes of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtednessthis Section 6.01.
(b) Holdings will The Loan Parties shall not, and shall not create, incur, assume permit any of its Subsidiaries to issue any Preferred Stock or permit to exist any Indebtedness except other preferred Equity Interest which (i) Indebtedness created under matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise before the then applicable Term Loan DocumentsMaturity Date, (ii) Indebtedness that would be permitted to be createdis or may become redeemable or repurchaseable at the option of the holder thereof, incurred in whole or assumed by the Borrower in part, or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect is convertible or exchangeable at the option of the Convertible Notes holder thereof for Indebtedness or Preferred Stock or any other preferred Equity Interest described in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstandingthis paragraph.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amount.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1) Indebtedness existing on purchase money indebtedness and Capital Lease Obligations in an amount not to exceed $10,000,000 in the Effective Date and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by aggregate at any one of the other subsections of this Section 10.1.(a)time outstanding, and (3) extensions, renewals and replacements of any refinancing indebtedness issued or incurred to refinance any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replacedIndebtedness;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a(x) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to any Subsidiary and Subsidiary, (y) of any Subsidiary to the Borrower or any other Subsidiary, provided Subsidiary and (Az) that Indebtedness of any Subsidiary that is not a Loan Party the Borrower to the Borrower Parent or any Subsidiary of its bank regulated subsidiaries; provided that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any of its Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent;
(iv) [Reserved];
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations[Reserved];
(A) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 at any time outstanding;
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding to exceed $5,000,000 10,000,000 at any one time outstandingso long as no Default or Event of Default has occurred and is continuing or would occur as a result of the incurrence of such Indebtedness;
(ixvii) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(xviii) 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 other Indebtedness), in each case provided in the ordinary course of business;
(xiix) Indebtedness in respect of Swap Agreements permitted by Section 10.6.not entered into for speculative purposes;
(xiix) Capital Lease Obligations any obligation arising from agreements providing for the indemnification, adjustment of the Borrower purchase price, earn outs or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters)similar obligations, in each case incurred or assumed in connection with investments the disposition or Indebtedness otherwise acquisition of any business, assets or equity interests in a transaction permitted under this Agreement; and
(xiva) Guarantees Indebtedness incurred for operational liquidity needs pursuant to lines of credit, (b) secured and unsecured Indebtedness in connection with the financing of securities and other financial instruments borrowed, bought or sold in the normal day to day conduct of Borrower or any Subsidiary’s business, (c) liabilities payable to brokers, dealers, clearing organizations, clients and correspondents, in each case incurred in the ordinary course of the Borrower or any Subsidiary’s business, including Indebtedness incurred in the ordinary course of business to finance or secure the purchase or carrying of securities, clearing and clearing-related activities, the provision of margin for forward, futures, repurchase or similar transactions, Indebtedness constituting credit balances in accounts carried by the Borrower or any Subsidiary, the making of advances to customers, the establishment of performance or surety bonds or guarantees, or in the nature of a letter of credit or letter of guaranty to support or secure trading and other obligations incurred in the ordinary course of business, (d) accounts payable and accrued liabilities in the ordinary course of business of the Borrower and its Subsidiaries, (e) notes, bills and checks presented in the ordinary course of business by such Person to banks for collection or deposit, (f) all obligations of the Borrower and its Subsidiaries of the character referred to in this clause (xi) to the extent owing to the Borrower or any of its Subsidiaries and (g) Guarantees entered into in connection with the ordinary course business of the Borrower or any Subsidiary. Notwithstanding any other provision of this Section 6.01(a), neither the Borrower nor any Broker Dealer Regulated Subsidiary of: (A) shall incur any Indebtedness of any joint venture that is not a incurred for the purpose of contributing to or meeting any capital requirements applicable to itself or any other Broker Dealer Regulated Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings The Borrower will not, and will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amountInterests.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The None of the Borrower or any Restricted Subsidiary will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) (A) Indebtedness created under the Loan Documents, (B) any Credit Agreement Refinancing Indebtedness, (C) any Refinancing Indebtedness in respect of any such Credit Agreement Refinancing Indebtedness and (D) Indebtedness represented by the Senior Unsecured Notes and any guarantee thereof by a Loan Party in an aggregate principal amount not to exceed $1,000,000,000 and any Refinancing Indebtedness in respect thereof;
(ii) (A) unsecured Indebtedness; provided that the aggregate principal amount of Indebtedness incurred under this Section 6.01(a)(ii)(A) on any date shall not exceed the sum of (1) the Incremental Base Amount as of such date plus (2) assuming that the full amount of any Incremental Revolving Commitment Increases then in effect have been funded as Loans on such date, an additional aggregate amount, such that, after giving pro forma effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Borrower shall be in pro forma compliance, in each case recomputed as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of any such financial statements, the last day of the last fiscal quarter included in the Latest Financial Statements), with a Total Leverage Ratio that is no greater than 3.50:1.00; provided, that the Borrower may elect to use clause (2) above (in whole or in part) prior to using all or a portion of clause (1), or combine the use of clauses (1) and (2), and, if clauses (1) and (2) are available at the time of such incurrence and the Borrower does not make an election, the Borrower will be deemed to have elected to use clause (2) first; provided, further, that in the case of any incurrence of Incremental Equivalent Indebtedness under this clause (ii)(A), at the time of the incurrence of such Incremental Equivalent Indebtedness, (1) no Event of Default (or in the case of a Limited Condition Transaction, no Event of Default described in clause (a), (b), (i) or (j) of Section 7.01) shall have occurred and be continuing, both immediately prior to and immediately after giving effect to the incurrence of such Incremental Equivalent Indebtedness, (2) such Incremental Equivalent Indebtedness shall comply with the Required Debt Parameters, (3) after giving pro forma effect to the incurrence of such Incremental Equivalent Indebtedness and the use of proceeds thereof, the Borrower shall be in pro forma compliance with each Financial Maintenance Covenant, in each case recomputed as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of any such financial statements, the last day of the last fiscal quarter included in the Latest Financial Statements), and (4) the Administrative Agent shall have received a certificate of an Authorized Officer of the Borrower, dated the date of incurrence of such Incremental Equivalent Indebtedness, confirming compliance with the conditions set forth in the first proviso to this clause (ii)(A) and clauses (1) and (3) of this proviso to clause (ii)(A), and setting forth reasonably detailed calculations in support thereof and (B) any Refinancing Indebtedness in respect of any Indebtedness permitted under clause (A) above or under this clause (B);
(iii) Indebtedness existing or contemplated on the Effective Date and set forth on Schedule 6.01 and Refinancing Indebtedness in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replaced;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to or any Subsidiary and of any Restricted Subsidiary to the Borrower or any other Restricted Subsidiary, ; provided (A) that any such Indebtedness of owing by any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Restricted Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary unsecured and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
(v) Guarantees incurred in compliance with Section 6.04;
(vi) Indebtedness (including Capital Lease Obligations and Synthetic Lease Obligations) of the Borrower or any Restricted Subsidiary (A) incurred to finance the acquisition, construction, repair, replacement, expansion or improvement, including, but not limited to, in each case, work-in-process, tenant improvements and construction-in-progress assets, of any fixed or capital assets; or (B) assumed in connection with the acquisition of any fixed or capital assets, and Refinancing Indebtedness in respect of any of the foregoing; provided that, immediately after giving effect to the incurrence or assumption of such Indebtedness and the use of the proceeds thereof, the aggregate principal amount of Indebtedness (including Capital Lease Obligations and Synthetic Lease Obligations and Refinancing Indebtedness) incurred in reliance on, and then outstanding under, this Section 6.01(a)(vi), shall not exceed the greater of (x) $80,000,000 and (y) 1.75% of Consolidated Total Assets as of the last day of the then most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of any such financial statements, the last day of the last fiscal quarter included in the Latest Financial Statements) at the time incurred; provided further that Capital Lease Obligations incurred by the Borrower or any Restricted Subsidiary pursuant to this clause (vi) in connection with a Sale/Leaseback Transaction permitted under Section 6.05(l) shall not be subject to the foregoing limitation;
(1) Indebtedness of the Borrower or any Restricted Subsidiary incurred to finance the acquisition, construction a Permitted Acquisition or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness other similar Investment permitted by this clause Section 6.04, (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii2) Indebtedness of any Person that becomes a Restricted Subsidiary (or of any Person not previously a Restricted Subsidiary that is merged or consolidated with or into a Restricted Subsidiary) in a transaction permitted under this Agreement (other than a designation of an Unrestricted Subsidiary as a Restricted Subsidiary pursuant to Section 5.15), (3) Indebtedness of any Person that is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets by the Borrower or any Restricted Subsidiary in a Permitted Acquisition or other similar Investment permitted by Section 6.04 or (4) Refinancing Indebtedness of any of the foregoing; provided that, in the case of Indebtedness referred to in clauses (1), (2) and (3) above:
(A) both immediately before and immediately after October 6giving effect thereto, 2006 but no Event of Default (or in the case of a Limited Condition Transaction, no Event of Default described in clause (a), (b), (i) or (j) of Section 7.01) shall have occurred and be continuing;
(B) after giving pro forma effect to the incurrence or assumption of such Indebtedness, the Borrower shall be in pro forma compliance with a Total Leverage Ratio, recomputed as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the Fifth Amendment Effective Datedelivery of any such financial statements, provided the last day of the last fiscal quarter included in the Latest Financial Statements), that is no greater than 3.50:1.00;
(C) after giving pro forma effect to the incurrence or assumption of such Indebtedness exists and the use of the proceeds thereof, the Borrower shall be in pro forma compliance with each Financial Maintenance Covenant, in each case recomputed as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of any such financial statements, the last day of the last fiscal quarter included in the Latest Financial Statements);
(D) with respect to any newly incurred Indebtedness, the stated maturity date of such Indebtedness is not earlier than the latest Maturity Date in effect at the time of incurrence of such Indebtedness;
(E) with respect to any Indebtedness of any Person that becomes a Restricted Subsidiary (or of any Person not previously a Restricted Subsidiary that is merged or consolidated with or into a Restricted Subsidiary) or Indebtedness of any Person that is assumed by the Borrower or any Restricted Subsidiary in connection with the acquisition of assets by the Borrower or any Restricted Subsidiary, such Indebtedness existed at the time such Person becomes became a Restricted Subsidiary and or at the time such assets were acquired and, in each case, was not created in contemplation of thereof or in connection therewith;
(F) the Administrative Agent shall have received a certificate of an Authorized Officer of the Borrower, dated the date of incurrence or assumption of such Indebtedness, confirming compliance with such Person becoming a Subsidiarythe conditions set forth in clauses (A), (B) and (C), and extensions, renewals and replacements of any setting forth reasonably detailed calculations in support thereof; and
(G) if such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereonis secured it shall be secured only by Liens permitted under Section 6.02(a)(iv), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 at any time outstanding;.
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Cash Management Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
(ix) Indebtedness owed to any Person (including obligations in respect of letters of netting services, automatic clearing house arrangements, employees’ credit for the benefit of such Person) providing workers’ compensationor purchase cards, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Personoverdraft protections and similar arrangements, in each case incurred in the ordinary course of business;
(ix) Indebtedness in respect of (A) letters of credit, bankers’ acceptances, bank guarantees or similar instruments or facilities issued for the account of the Borrower or any Restricted Subsidiary in the ordinary course of business supporting obligations under workers’ compensation, unemployment insurance and other social security laws and (B) bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and obligations of a like nature incurred in the ordinary course of business and not in connection with the borrowing of money;
(x) Indebtedness of the Borrower or any Restricted Subsidiary in respect the form of performance bondsindemnifications, bid bondspurchase price adjustments, appeal bondsearn-outs, surety bonds, performance and completion guarantees and non-competition agreements or other arrangements representing acquisition consideration or deferred payments of a similar obligations (nature incurred in connection with any Permitted Acquisition or other than in respect of other Indebtedness), in each case provided in the ordinary course of businessInvestment permitted by Section 6.04;
(xi) additional senior, senior subordinated or subordinated Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred Restricted Subsidiary; provided that:
(A) both immediately before and immediately after giving effect to the incurrence of any such Indebtedness, no Event of Default shall have occurred and be continuing;
(B) after giving pro forma effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Borrower shall be in pro forma compliance with a Total Leverage Ratio, recomputed as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the Fifth Amendment Effective Date and result from delivery of any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basisfinancial statements, the Leverage Ratio as defined last day of the last fiscal quarter included in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(aLatest Financial Statements), that is no greater than 3.50:1.00;
(xiiiC) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by such Indebtedness shall comply with the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this AgreementRequired Debt Parameters; and
(xivD) Guarantees by the Borrower or any Subsidiary of: Administrative Agent shall have received a certificate of an Authorized Officer of the Borrower, dated the date of incurrence of such Indebtedness, confirming compliance with the conditions set forth in clauses (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness setting forth reasonably detailed calculations in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amount.support thereof;
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower No Loan Party will, or will not, and will not permit any Subsidiary of its subsidiaries to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan DocumentsDocuments and any letter of credit application delivered hereunder;
(ii) (1A) Indebtedness existing on the Effective Date (other than under the High Yield Notes) and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), 6.01 and (3) any extensions, renewals renewals, refinancings and replacements of any such Indebtedness described in clause that (1x) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall do not be Indebtedness of an obligor that was not an obligor with respect to increase the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a outstanding principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced thereof (plus any unpaid accrued but unpaid interest interest, customary fees and redemption premium thereon), (y) have a later or equal final maturity and (C) shall not have an earlier maturity date longer or shorter equal weighted average life than the Indebtedness being extended, renewed renewed, refinanced or replacedreplaced and (z) the covenants, events of default and other provisions thereof (including any Guarantees thereof) shall be, in the aggregate, not materially less favorable to the Lenders and the applicable Loan Parties than those contained in the Indebtedness being extended, renewed, refinanced or replaced and (B) the High Yield Notes and the Guarantees by any Loan Party of the High Yield Notes (including any notes and Guarantees by any Loan Party issued in exchange therefor in accordance with the registration rights document entered into in connection with the issuance of the High Yield Notes and the Guarantees thereof by any Loan Party) and any extensions, renewals, refinancings and replacements thereof, so long as (a) no Event of Default at the time any such extension, renewal, refinancing or replacement is entered into has occurred and is continuing or would result therefrom and (b) such extension, renewal, refinancing or replacement is unsecured and otherwise complies with all of clauses (x), (y) and (z) of Section 6.01(ii)(A) with respect to such extensions, renewals, refinancings and replacements;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower any Loan Party to any Subsidiary and another Loan Party or a subsidiary of any Subsidiary to the Borrower or any other Subsidiary, Holdings; provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary Person that is not a Loan Party shall be subject to Section 10.4. and 6.04;
(Civ) Guarantees permitted under this clause by any Loan Party of Indebtedness or other obligations of any other Loan Party or any other subsidiary of Holdings; provided that Guarantees by any Loan Party of Indebtedness or other obligations of any Person that is not a Loan Party shall be subject to Section 6.04;
(v) shall be subordinated to the Obligations Indebtedness of the applicable Subsidiary that is a any Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
(A) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction construction, maintenance, addition, replacement, refurbishment or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (plus unpaid accrued interest, customary fees and premium thereon); provided that (A) such Indebtedness is incurred prior to or within 90 180 days after such acquisition or the completion of such construction construction, maintenance, addition, replacement, refurbishment or improvement, improvement and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding aggregate principal amount of such extensions, renewals and replacements does Indebtedness permitted by this clause (v) shall not exceed $5,000,000;
(vi) Indebtedness of any Person that becomes a Loan Party after the principal Effective Date; provided that (A) such Indebtedness exists at the time such Person becomes a subsidiary of the Indebtedness being extended, renewed or replaced Holdings and is not created in connection with such Person becoming a Loan Party and (plus any accrued but unpaid interest and premium thereon); provided, however, that B) the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date5,000,000;
(vii) so long as no Event of Default has occurred, is continuing or would result therefrom, Indebtedness of any Person that becomes a Subsidiary Loan Party to finance the acquisition of one new or used Vessel after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), ; provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 at any time outstandingLeverage Ratio immediately prior to and after giving effect to such acquisition is less than 4.00 to 1.00;
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior subsidiary thereof under any Swap Agreement permitted pursuant to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstandingSection 6.07;
(ix) Earnouts, indemnities and purchase price adjustments pursuant to the Acquisition or a Permitted Acquisition;
(x) Indebtedness owed arising pursuant to any Person the terms of the Guarantee and Indemnity Agreement;
(including xi) obligations in respect of letters of credit performance, bid, tender, appeal and surety bonds and completion Guarantees (in each case other than for an obligation for money borrowed) provided for the benefit of such Persona Loan Party in the ordinary course of business;
(xii) providing workers’ compensationIndebtedness in connection with Liens permitted by clause (h) of Section 6.02;
(xiii) Indebtedness in respect of taxes, healthassessments, disability governmental charges or other employee benefits levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with Section 5.08;
(xiv) endorsements for collection, deposit or property, casualty negotiation and warranties of products or liability insurance, pursuant to reimbursement or indemnification obligations to such Personservices, in each case incurred in the ordinary course of business;
(xxv) Indebtedness obligations on account 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 other Indebtedness), in each case provided non-current accounts payable incurred in the ordinary course of businessbusiness which any Loan Party or any subsidiary of such Loan Party is contesting in good faith and by appropriate proceedings diligently conducted and with respect to which adequate reserves have been established and are being maintained in accordance with GAAP;
(xixvi) Indebtedness constituting contingent liabilities arising under, relating to, or in connection with, any employment agreement of any Loan Party or any subsidiary of such Loan Party, in an aggregate principal amount at any time outstanding not to exceed $5,000,000 so long as such Indebtedness is not secured and is subordinated to the Obligations on terms reasonably acceptable to the Administrative Agent;
(xvii) Indebtedness described in Section 6.04(d);
(xviii) Indebtedness consisting of fees and any deferred portion thereof owed under the Management Agreement;
(xix) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date employee benefit plans and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its businessprograms, whether now owned to current or hereafter acquiredretired employees, including, without limitation, accrued expenses, pension liabilities, deferred compensation, bonus plans, option plans, medical, dental and thereafter rents or leases such property or other property that it intends health plans and other similar plans providing benefits to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined employees entered into in the Existing Credit Agreement shall ordinary course of business (but not exceed the ratio then applicable including Indebtedness under Section 10.11.(aemployment agreements);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (Axx) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes Foreign Subsidiaries in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) 2,500,000 at any time outstanding.;
(cxxi) Neither Holdings nor Indebtedness arising from judgments, orders or other awards to the Borrower willextent not constituting an Event of Default;
(xxii) so long as no Event of Default shall have occurred and be continuing or would result therefrom, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case additional issuances of the Trust Preferred SecuritiesHigh Yield Notes (or any extension, MHG Capital Trust Irenewal, refinancing or replacement thereof that complies with Section 6.01(ii), Preferred Equity Interests ); provided that are Qualified Equity Interests the Leverage Ratio immediately prior to and after giving effect to such issuance is less than 4.25 to 1.00;
(xxiii) Indebtedness issued pursuant to Section 6.08(a)(iv); and
(xxiv) other Indebtedness of the Loan Parties and their subsidiaries not secured by any Collateral in an aggregate principal amount not exceeding $150,000,000 10,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amount.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit any Subsidiary other Loan Party to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1) Indebtedness existing on the Effective Date date hereof and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replaced6.01;
(iii) Additional Mortgage Indebtedness of any Domestic Subsidiary to Borrower or any other Domestic Subsidiary and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior Indebtedness of Borrower to the Fifth Amendment Effective Date if, on the date any of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreementits Domestic Subsidiaries;
(iv) Guarantees of Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary, provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to permitted under this Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent6.01(a);
(v) Guarantees by the Borrower of Capital Lease Obligations or purchase money Indebtedness of in an aggregate amount not exceeding, at any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiaryone time outstanding, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations$1,500,000;
(A) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at exposure resulting from any time outstanding, and any Indebtedness Swap Agreement permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Dateunder Section 6.07 hereof;
(vii) unsecured Subordinated Debt;
(viii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior incurred by Foreign Subsidiaries (including Indebtedness owed to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary Borrower and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereonits Domestic Subsidiaries), provided that the aggregate principal outstanding amount of all such Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 at any time outstanding500,000;
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (Bix) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any one time outstanding;
(ixx) Indebtedness owed to arising from the financing of any Person (including obligations in respect insurance premium of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred any Loan Party in the ordinary course of business;
, so long as (xi) such Indebtedness shall not be in excess of the Borrower or amount of the unpaid cost of, and shall be incurred only to defer the cost of, such insurance for the underlying term of such insurance policy, (ii) any Subsidiary in respect unpaid amount of performance bondssuch Indebtedness is fully cancelled upon termination of the underlying insurance policy, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations (other than in respect iii) the aggregate principal amount of other Indebtedness), in each case provided in the ordinary course of business;Indebtedness at any time outstanding pursuant to this clause shall not exceed $1,000,000; and
(xi) Indebtedness in respect extensions, renewals and replacements of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations any of the Borrower or any Subsidiary foregoing that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall do not increase the outstanding principal amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtednessthereof.
(b) Holdings The Borrower will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower willnot, nor will they it permit any Subsidiary other Loan Party to, issue or permit to remain outstanding any Preferred Equity Interests except in Disqualified Stock after the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amountEffective Date.
Appears in 1 contract
Samples: Credit Agreement (Solaris Oilfield Infrastructure, Inc.)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) the Subordinated Debt;
(1iii) any Existing Notes that are not purchased pursuant to the Debt Tender Offer;
(iv) Indebtedness existing on the Effective Date and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), 6.01 and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall do not be Indebtedness of an obligor that was not an obligor with respect to increase the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a outstanding principal amount that exceeds the principal amount of the Indebtedness being extended, renewed thereof or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have result in an earlier maturity date or shorter decreased weighted average life than the Indebtedness being extended, renewed or replacedthereof;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(ivv) Indebtedness of the Borrower to any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower or any other Restricted Subsidiary, provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent;
(vvi) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Restricted Subsidiary of Indebtedness of the Borrower or any other Subsidiary, ; provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Restricted Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations6.04;
(Avii) Indebtedness of the Borrower or any Restricted Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that (A) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, improvement and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vivii) at any time outstanding shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date10,000,000;
(viiviii) Indebtedness of any Person that becomes a Restricted Subsidiary after October 6the Effective Date and extensions, 2006 but prior to renewals and replacements of any such Indebtedness that do not increase the Fifth Amendment Effective Date, outstanding principal amount thereof; provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was is not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements ;
(ix) Indebtedness of the Borrower incurred under the Purchase Agreement for any purchase price adjustment payable under the Purchase Agreement; provided that such Indebtedness so long as together with the principal amount of such extensions, renewals and replacements cash consideration paid in connection with the Restatement Acquisition on the Restatement Effective Date does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 at any time outstanding105,000,000;
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (Bx) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 25,000,000 at any time outstanding;
(ix) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(x) 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 other Indebtedness), in each case provided in the ordinary course of business;; and
(xi) other unsecured Indebtedness in respect an aggregate principal amount not exceeding $25,000,000 at any time outstanding; provided that, at the time of Swap Agreements and after giving effect to the incurrence of any such Indebtedness permitted by Section 10.6.;
this clause (xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basisx), the Leverage Ratio as defined in (determined for this purpose based on Consolidated EBITDA for the Existing Credit Agreement period of four consecutive fiscal quarters most recently ended for which financial statements have been delivered pursuant to clause (a) or (b) of Section 5.01) shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior 5.0 to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness1.0.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, Documents and (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstandingHoldings Discount Notes.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, (i) issue any preferred stock or permit to remain outstanding any Preferred other preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests other than preferred stock issued by Holdings shall be excluded from that is not Disqualified Stock) or (ii) designate any other Indebtedness as "Designated Senior Indebtedness" under and as defined in the calculation of such amountSubordinated Debt Documents.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The None of the Borrower will not, and will not permit or any Subsidiary to, will create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) Permitted Secured Indebtedness and Permitted Unsecured Indebtedness; provided that (1A) no Event of Default shall have occurred and be continuing or would result therefrom and (B) after giving effect to the incurrence of such Permitted Secured Indebtedness or Permitted Unsecured Indebtedness, the Borrower shall be in compliance with the covenant set forth in Section 8.25 on a Pro Forma Basis for the most recent Test Period ended on or prior to such date of incurrence and any Refinancing Indebtedness in respect of any of the foregoing (provided that any such Refinancing Indebtedness shall also satisfy the requirements set forth in the definition of the term “Permitted Secured Indebtedness” or “Permitted Unsecured Indebtedness,” as applicable).
(iii) Indebtedness existing on the Effective Closing Date and set forth on Schedule 8.7 and Refinancing Indebtedness in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replaced;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to any Subsidiary and of (A) any Subsidiary to the Borrower or any other Subsidiary, ; provided (A) that any such Indebtedness of owing by any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent;
(v) Guarantees unsecured and shall be evidenced by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii))an Intercompany Note, (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject owing to Section 10.4. any other Subsidiary that is not a Loan Party and (C) Guarantees to the extent permitted under this clause by Section 8.9, any Subsidiary that is not a Loan Party owing to any Loan Party; provided that any such Indebtedness shall be evidenced by an Intercompany Note;
(v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the ObligationsGuarantees incurred in compliance with Section 8.9;
(Avi) Indebtedness (including Capital Lease Obligations) of the Borrower or any Subsidiary (A) incurred to finance the acquisition, construction construction, repair, replacement, expansion or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, ; provided that such Indebtedness is incurred prior to or within 90 270 days after such acquisition or the completion of such construction construction, repair, replacement, expansion or improvement, improvement and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements Indebtedness does not exceed the principal cost of acquiring, constructing, repairing, replacing, expanding or improving such fixed or capital assets (it being understood that property subject to a Capital Lease Obligation not entered into as part of a Sale/Leaseback Transaction will be deemed acquired at the time such Capital Lease Obligation becomes effective) or (B) assumed in connection with the acquisition of any fixed or capital assets, and Refinancing Indebtedness in respect of any of the foregoing; provided that (I) no Event of Default shall have occurred and be continuing or would result therefrom and (II) after giving effect to the incurrence of such Indebtedness being extendedor Refinancing Indebtedness, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) Borrower shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred be in compliance with the covenant set forth in Section 8.25 on a Pro Forma Basis for the most recent Test Period ended on or after the Fifth Amendment Effective Date shall not be used prior to finance the acquisition, construction, improvement or expansion such date of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Dateincurrence;
(vii) Indebtedness of any Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Subsidiary in a transaction permitted hereunder) after October 6, 2006 but prior to the Fifth Amendment Effective Closing Date, or Indebtedness of any Person that is assumed by any Subsidiary in connection with an acquisition of assets by such Subsidiary in a Permitted Acquisition; provided that (A) such Indebtedness exists at the time such Person becomes a Subsidiary (or is so merged or consolidated) or such assets are acquired and was is not created in contemplation of or in connection with such Person becoming a SubsidiarySubsidiary (or such merger or consolidation) or such assets being acquired, (B) neither the Borrower nor any Subsidiary (other than such Person or the Subsidiary with which such Person is merged or consolidated or the Person that so assumes such Person’s Indebtedness) shall Guarantee or otherwise become liable for the payment of such Indebtedness, and extensions, renewals and replacements Refinancing Indebtedness in respect of any of the foregoing, (C) no Event of Default shall have occurred and be continuing or would result therefrom, and (D) after giving effect to the incurrence of such Indebtedness so long as or Refinancing Indebtedness, the principal amount Borrower shall be in compliance with the covenant set forth in Section 8.25 on a Pro Forma Basis for the most recent Test Period ended on or prior to such date of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 at any time outstandingincurrence;
(viii) Cash Management Obligations and other Indebtedness in respect of netting services, automatic clearing house arrangements, employees’ credit or purchase cards, overdraft protections and similar arrangements, in each case incurred in the ordinary course of business; provided that such Indebtedness (other than with respect to credit or purchase cards) shall be repaid in full within ten (10) Business Days of the incurrence thereof;
(ix) Indebtedness in respect of (A) a Guarantee by letters of credit, bankers’ acceptances, bank guarantees or similar instruments or facilities issued for the account of the Borrower or any Subsidiary in the ordinary course of Indebtedness of Holdings permitted business supporting obligations under Section 10.1.(b)(iii)workers’ compensation, provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent unemployment insurance and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations other social security laws and (B) other unsecured bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and obligations of a like nature incurred in the ordinary course of business and not in connection with the borrowing of money;
(x) Indebtedness of the Borrower or any Subsidiary in the form of indemnifications, purchase price adjustments, earn-outs, non-competition agreements or other arrangements representing acquisition consideration or deferred payments of a similar nature incurred prior to the Fifth Amendment Effective Date in connection with any Permitted Acquisition or other Investment permitted by Section 8.9;
(xi) Permitted Non-Loan Party Indebtedness in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
(ixxii) unsecured Indebtedness owed to any Person (including obligations in respect of letters (A) obligations of credit for the benefit Borrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification goods and services; provided that such obligations to such Person, are incurred in each case incurred connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business;
business and not in connection with the borrowing of money and (xB) Indebtedness intercompany obligations 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 accounts payable incurred in respect of other Indebtedness), in each case provided connection with goods sold or services rendered in the ordinary course of businessbusiness and not in connection with the borrowing of money;
(xixiii) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined pay insurance premiums arising in the Existing Credit Agreement shall ordinary course of business and not exceed in connection with the ratio then applicable under Section 10.11.(a)borrowing of money;
(xiiixiv) unsecured Indebtedness consisting of promissory notes issued by any Loan Party to current or former officers, managers, consultants, directors and employees (Aor their spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) Guarantees and/or indemnities (other than in respect to finance the purchase or redemption of payment Equity Interests of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters)Borrower, in each case in connection with investments or Indebtedness otherwise to the extent permitted under this Agreement; andby Section 8.13;
(xivxv) Guarantees by the Borrower or any Subsidiary of: (A) other Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) 5,000,000 at any time outstanding; and
(xvi) all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (i) through (xv) above.
(cb) Neither Holdings nor the The Borrower will, nor will they not permit any Subsidiary toto issue any preferred Equity Interests, issue or permit to remain outstanding any Preferred except preferred Equity Interests except in the case of Holdings or issued to and held by the Borrower or any other Subsidiary (orand, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred preferred Equity Interests issued by any Subsidiary that is a Loan Party, such preferred Equity Interests shall be held by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amountor a Loan Party).
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit None of the Company or any Subsidiary to, will create, incur, assume or permit to exist any Indebtedness, except:
(ia) Indebtedness created under the Loan Documents;
(ii) (1b) Indebtedness existing on the Effective Closing Date and set forth on Schedule 6.01 and Refinancing Indebtedness in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one respect of any of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replacedforegoing;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(ivc) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower Company or any other Subsidiary, ; provided that (A) that any such Indebtedness owing by any Loan Party shall be unsecured and shall be subordinated in right of payment to the Loan Document Obligations on terms customary for intercompany subordinated Indebtedness, (B) any such Indebtedness owing to any Loan Party shall be evidenced by a promissory note which shall have been pledged pursuant to the Collateral Agreements to the extent required by the Collateral and Guarantee Requirement and (C) any such Indebtedness owing by any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to incurred in compliance with Section 10.4. 6.04(d);
(d) Guarantees incurred in compliance with Section 6.04;
(e) Permitted First Priority Refinancing Indebtedness, Permitted Second Priority Refinancing Indebtedness and any Refinancing Indebtedness in respect of any of the foregoing;
(Bf) (i) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
(A) Indebtedness of the Borrower Company or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations Obligations, purchase money Indebtedness and any Indebtedness assumed by the Borrower Company or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, ; provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed the greater of (x) $5,000,000 50,000,000 and (y) 5.0% of Total Assets (at the time of incurrence) at any time outstanding, and any (ii) Refinancing Indebtedness permitted by this in respect of Indebtedness incurred or assumed pursuant to clause (vii) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Dateabove;
(viig) (i) Indebtedness of any Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Subsidiary in a transaction permitted hereunder) after October 6, 2006 but prior to the Fifth Amendment Effective Closing Date, or Indebtedness of any Person that is assumed by any Subsidiary in connection with an acquisition of assets by such Subsidiary in a Permitted Acquisition; provided that such Indebtedness exists at the time such Person becomes a Subsidiary (or is so merged or consolidated) or such assets are acquired and was is not created in contemplation of or in connection with such Person becoming a SubsidiarySubsidiary (or such merger or consolidation) or such assets being acquired, and extensions, renewals and replacements (ii) Refinancing Indebtedness in respect of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced assumed pursuant to clause (plus any accrued but unpaid interest and redemption premium thereon), i) above; provided further that the aggregate principal amount of Indebtedness permitted by this clause (viig) shall not exceed $5,000,000 25,000,000 at any time outstanding;
(viiih) Permitted Ratio Indebtedness so long as, at the time of incurrence of such Permitted Ratio Indebtedness, the Leverage Ratio, calculated on a Pro Forma Basis as of the date of incurrence thereof, is not in excess of 2.50 to 1.00; provided that (Ai) a Guarantee by immediately prior to and immediately after giving effect to the Borrower incurrence of any Permitted Ratio Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(Ah), no Event of Default shall have occurred and be continuing and (ii) shall be subordinated the Company will, on the date of incurrence of such Indebtedness, deliver to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness Administrative Agent a certificate of a Financial Officer of the Borrower or Company, dated such date, confirming the satisfaction of the conditions set forth above and attaching a reasonably detailed calculation of the Leverage Ratio on a Pro Forma Basis as of such date identifying the Permitted Ratio Indebtedness being incurred and specifying that it is being incurred pursuant to this clause (h); provided further that no Subsidiary that is not a Loan Party shall incur any Subsidiary incurred prior to Indebtedness under this Section 6.01(h) if, at the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at time of, and after giving effect to, the incurrence of such Indebtedness (and any time outstandingsubstantially simultaneous use of the Permitted Amount) and the use of proceeds thereof, the Permitted Amount would be less than zero;
(ixi) Indebtedness incurred in the ordinary course of business and owed to in respect of any Person overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any automated clearing-house transfers of funds;
(including obligations j) Indebtedness in respect of letters of credit credit, bank guarantees and similar instruments issued for the benefit account of such Personthe Company or any Subsidiary in the ordinary course of business supporting obligations under (i) providing workers’ compensation, health, disability or other employee benefits or propertybenefits, casualty or liability insurance, unemployment insurance and other social security laws and local state and federal payroll taxes, (ii) obligations in connection with self-insurance arrangements in the ordinary course of business and (iii) bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance and reclamation bonds and obligations of a like nature;
(k) Indebtedness consisting of client advances or deposits received in the ordinary course of business;
(l) Alternative Incremental Facility Indebtedness and Refinancing Indebtedness in respect thereof; provided that (i) no Event of Default shall have occurred and be continuing on the date of incurrence thereof, both immediately prior to and immediately after giving effect to such incurrence and (ii) the aggregate amount of the Incremental Term Loans incurred pursuant to reimbursement Section 2.21 on any date, together with the aggregate original amount of all Alternative Incremental Facility Indebtedness incurred under this clause (l) on such date, shall not exceed the greater of (x) Base Incremental Amount as of such date, and (y) an amount subject to the Maximum Incremental Amount in effect on such date;
(m) Indebtedness of the Company or any Subsidiary in the form of purchase price adjustments (including in respect of working capital), earnouts, deferred compensation, indemnification obligations or other arrangements representing acquisition consideration or deferred payments of a similar nature incurred in connection with any Permitted Acquisition or other Investments permitted under Section 6.04 or Dispositions permitted under Section 6.05;
(n) Indebtedness of Subsidiaries that are not Loan Parties; provided that no Subsidiary that is not a Loan Party shall incur any Indebtedness under this Section 6.01(n) if, at the time of, and after giving effect to, the incurrence of such Indebtedness (and any substantially simultaneous use of the Permitted Amount) and the use of proceeds thereof, the Permitted Amount would be less than zero;
(o) Indebtedness relating to such Personpremium financing arrangements for property and casualty insurance plans and health and welfare benefit plans (including health and workers compensation insurance, in each case employment practices liability insurance and directors and officers insurance), if incurred in the ordinary course of business;
(xp) Indebtedness with respect to any letter of credit naming a Loan Party or a Subsidiary as 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 other Indebtedness)account party, in each case provided in the ordinary course of businessan aggregate amount for all such Indebtedness not to exceed $20,000,000 at any time outstanding;
(xiq) other Indebtedness not otherwise described above in respect an aggregate amount at any time outstanding not in excess of Swap Agreements permitted by Section 10.6.;
$60,000,000; provided that the aggregate amount of Indebtedness of non-Loan Parties at any time outstanding in reliance on this clause (xiiq) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement$10,000,000; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (Ar) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee Permitted Joint Ventures (and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed Guarantees thereof by the Borrower Company or any Subsidiary under Sections 10.1.(a)(vother Subsidiary), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that no Permitted Joint Venture shall incur any such Preferred Equity Interests issued by Indebtedness under this Section 6.01(r) if, at the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from time of, and after giving effect to, the calculation incurrence of such amountIndebtedness (and any substantially simultaneous use of the Permitted Amount) and the use of proceeds thereof, the Permitted Amount would be less than zero.
Appears in 1 contract
Samples: Credit Agreement (Orbotech LTD)
Indebtedness; Certain Equity Securities. (a) The None of the Borrower will not, and will not permit or any Subsidiary to, will create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1) Indebtedness existing on the Effective Date date hereof and set forth on Schedule 6.01 and Refinancing Indebtedness in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replacedthereof;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to any Subsidiary and of or any Subsidiary to the Borrower or any other Subsidiary, ; provided that (A) such Indebtedness shall not have been transferred to any Person other than the Borrower or any Subsidiary, (B) any such Indebtedness owing by any Loan Party to a Subsidiary that is not a Loan Party shall be unsecured and subordinated in right of payment to the Loan Document Obligations on terms customary for intercompany subordinated Indebtedness, as reasonably determined by the Administrative Agent, (C) any such Indebtedness of owing to any Loan Party shall be evidenced by a promissory note that shall have been pledged pursuant to the Collateral Agreement and (D) any such Indebtedness owing by any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to incurred in compliance with Section 10.4. and 6.04;
(Biv) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the AgentGuarantees incurred in compliance with Section 6.04;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
(A) Indebtedness of the Borrower or any Subsidiary (A) incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, Obligations; provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvementimprovement and the principal amount of such Indebtedness does not exceed the cost of acquiring, constructing or improving such fixed or capital assets (and related fees and costs) or (B) assumed in connection with the acquisition of any fixed or capital assets, and Refinancing Indebtedness in respect of any of the foregoing; provided that the aggregate principal amount of Indebtedness permitted by this clause (v) shall not exceed the greater of (x) 5.0% of Consolidated Total Assets and (y) $25,000,000, at any time outstanding;
(vi) Indebtedness of any Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Subsidiary in a transaction permitted hereunder) after the date hereof, or Indebtedness of any Person that is assumed by any Subsidiary in connection with an acquisition of assets by such Subsidiary in a Permitted Acquisition or a Specified Foreign Acquisition permitted under Section 6.04(m), provided that (A) such Indebtedness exists at the time such Person becomes a Subsidiary (or is so merged or consolidated) or such assets are acquired and is not created in contemplation of or in connection with such Person becoming a Subsidiary (or such merger or consolidation) or such assets being acquired and (B) extensionsneither the Borrower nor any Subsidiary (other than such Person or the Subsidiary with which such Person is merged or consolidated or the Person that so assumes such Person’s Indebtedness) shall Guarantee or otherwise become liable for the payment of such Indebtedness, renewals and replacements Refinancing Indebtedness in respect of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon)foregoing; provided, however, provided that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 25,000,000 at any time outstanding;
(vii) Indebtedness owed in respect of any overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any automated clearing-house transfers of funds; provided that such Indebtedness shall be repaid in full within five Business Days of the incurrence thereof;
(viii) (A) a Guarantee by Indebtedness in respect of letters of credit, bank guarantees and similar instruments issued for the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness account of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
(ix) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of businessbusiness supporting obligations under (A) workers’ compensation, unemployment insurance and other social security laws and (B) bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and obligations of a like nature;
(xix) Indebtedness of the Borrower or any Subsidiary in respect the form of performance bondspurchase price adjustments, bid bondsearn-outs, appeal bondsnon-competition agreements or other arrangements representing acquisition consideration or deferred payments of a similar nature incurred in connection with any Permitted Acquisition, surety bonds, performance Specified Foreign Acquisition or other Investment permitted by Section 6.04;
(x) Permitted Unsecured Indebtedness and completion guarantees and similar obligations (other than Refinancing Indebtedness in respect of other Indebtedness), in each case provided in the ordinary course of businessthereof;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes Foreign Subsidiaries in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 20,000,000 at any time outstanding; provided that and
(xii) Indebtedness of any such Preferred Loan Party pursuant to Hedging Agreements permitted by Section 6.07.
(b) No Subsidiary will issue or permit to exist any Disqualified Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amountInterests.
Appears in 1 contract
Samples: Credit Agreement (Shutterfly Inc)
Indebtedness; Certain Equity Securities. (a) The Borrower Company will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) Indebtedness of the Company (1and, without duplication, Guarantees thereof by the Subsidiary Loan Parties) in an aggregate principal amount at any time outstanding not to exceed $525,000,000 less the sum of (x) the Revolving Commitments (or, if the Revolving Commitments have terminated, the Revolving Exposures) and (y) the aggregate principal amount of all principal payments made with the proceeds of Asset Dispositions (as defined in the Existing Indentures) permanently reducing the commitments or principal amounts otherwise permitted to be outstanding pursuant to this clause (ii); provided that such Indebtedness (A) matures no earlier than November 23, 2010, (B) provides for principal repayments of no more than 5% of the initial commitments or principal amount per annum until after November 23, 2009, and (C) is governed by provisions relating to representations and warranties, covenants, events of default and remedies which are no more favorable, taken as a whole, to the holders thereof than the provisions set forth in this Agreement;
(iii) the Existing Notes and extensions, renewals and replacements of the Existing Notes (a) that do not increase the outstanding principal amount or result in an initial principal repayment date earlier than May 24, 2010 and (b) the material terms of which are at least as favorable to the obligors thereunder as the material terms of the Existing Notes;
(iv) the Gallman Indebtedness;
(v) the Praxair PIK Note;
(vi) other Indebtedness existing on the Effective Date date hereof and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), 6.01 and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1a) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall do not be Indebtedness of an obligor that was not an obligor with respect to increase the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a outstanding principal amount that exceeds the principal amount of the Indebtedness being extended, renewed thereof or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have result in an earlier maturity date or shorter decreased weighted average life than thereof and (b) the Indebtedness being extended, renewed or replacedmaterial terms of which are at least as favorable to the obligors thereunder as the material terms of the refinanced Indebtedness;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(ivvii) Indebtedness of the Borrower Company to any Subsidiary and of any Subsidiary to the Borrower Company or any other Subsidiary, ; provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower Company or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent6.04;
(vviii) Guarantees by the Borrower Company of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower Company or any other Subsidiary, ; provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower Company or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations6.04;
(Aix) Indebtedness of the Borrower Company or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof; provided that (A) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, improvement and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (viix) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 15,000,000 at any time outstanding;
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
(ix) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(x) Indebtedness of the Borrower or customary obligations arising under 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 other Indebtedness), in each case provided in the ordinary course of business;Permitted Receivables Transaction; and
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations other unsecured Indebtedness; provided that, at the time of the Borrower incurrence of such other Indebtedness, (a) no Default or Event of Default has occurred and is continuing, or would result from such incurrence, and (b) after giving effect to such incurrence, the Company shall be in compliance on a pro forma basis with Sections 6.15 and 6.16 (assuming that such Indebtedness bears interest during any Subsidiary that are incurred portion of the applicable measurement period prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior equal to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior average interest rate applicable to the Fifth Amendment Effective Date and Loans during such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtednessperiod).
(b) Holdings The Company will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, to issue any preferred stock or permit to remain outstanding any Preferred other preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amountInterests.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:except the Borrower or any of its Restricted Subsidiaries, subject to the Non-Guarantor Debt Cap, may incur Indebtedness, if the Borrower will be in compliance with Sections 6.12 and 6.13 on a pro forma basis at the time of the incurrence of such additional Indebtedness, and after giving effect thereto; provided that a Restricted Subsidiary that is not a Guarantor may not (and the Borrower will not permit any Restricted Subsidiary that is not a Guarantor to) incur any Indebtedness pursuant to this clause (a) if after giving effect to such incurrence on a pro forma basis (including giving pro forma effect to the application of proceeds thereof), more than an aggregate of $5.0 million of Indebtedness of Restricted Subsidiaries that are not Guarantors would be outstanding pursuant to the exception in this clause (a) (the “Non-Guarantor Debt Cap”).
(ib) Notwithstanding the foregoing, Section 6.01(a) shall not prohibit the incurrence of any of the following items of Indebtedness created (collectively, “Permitted Debt”):
(1) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness under the Loan Documentsthis Agreement in an aggregate principal amount at any one time outstanding pursuant to this clause (1) not to exceed $50.0 million;
(ii2) (1) the Indebtedness existing on the Effective Date and set forth on Schedule 6.01;
(3) the Indebtedness represented by the ORBCOMM Notes; provided that the Borrower may not issue any Additional Notes unless it could incur such Indebtedness under Section 6.01(a) hereof;
(4) the incurrence by the Borrower or any Restricted Subsidiary thereof of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in Schedule 10.1.(aeach case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property (real or personal), plant or equipment used in the business of the Borrower or such Restricted Subsidiary (whether through the direct acquisition of such assets or the acquisition of Equity Interests of any Person owning such assets), in an aggregate principal amount at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (4), not to exceed the greater of (x) 1.0% of Total Assets and (y) $5.0 million;
(5) the incurrence by the Borrower or any Restricted Subsidiary thereof of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Agreement to be incurred under Section 6.01(a) or clauses (2), (23), (4), (5), (14) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections or (16) of this Section 10.1.(a6.01(b);
(6) the incurrence by the Borrower or any of its Restricted Subsidiaries of intercompany Indebtedness owing to and held by the Borrower or any of its Restricted Subsidiaries; provided, however, that (A) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Borrower or a Restricted Subsidiary thereof and (3B) extensions, renewals and replacements any sale or other transfer of any such Indebtedness described to a Person that is not either the Borrower or a Restricted Subsidiary thereof, shall be deemed, in clause (1) each case, to constitute an incurrence of such Indebtedness by the Borrower or (2)such Restricted Subsidiary, provided that such extendingas the case may be, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purposepermitted by this Section 6.01(b)(6), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replaced;
(iii7) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to Guarantee by the Borrower or any other Subsidiary, provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary its Restricted Subsidiaries of Indebtedness of the Borrower or any other Subsidiary, provided a Restricted Subsidiary thereof that (A) the Indebtedness so Guaranteed is was permitted to be incurred by another provision of this Section 6.01;
(other than clause (a)(ii) or (a)(vii)), (B) Guarantees 8) the incurrence by the Borrower or any Subsidiary that is a Loan Party of its Restricted Subsidiaries of Hedging Obligations permitted pursuant to Section 6.07;
(9) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Borrower or any of its Restricted Subsidiaries pursuant to such agreements, in any case incurred in connection with the disposition of any business, assets or Restricted Subsidiary (other than Guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Restricted Subsidiary for the purpose of financing such acquisition), so long as the principal amount does not exceed the gross proceeds actually received by the Borrower or any Restricted Subsidiary thereof in connection with such disposition;
(10) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within 30 days of its incurrence;
(11) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness constituting reimbursement obligations with respect to letters of credit in respect of workers’ compensation claims or self-insurance obligations or bid, performance, appeal or surety bonds (in each case other than for an obligation for borrowed money);
(12) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business; provided that, upon the drawing of such letters of credit or the incurrence of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or incurrence;
(13) [reserved];
(14) the incurrence of Acquired Debt, provided that the Borrower could incur such Indebtedness under Section 6.01(a) hereof;
(15) the incurrence of Indebtedness consisting of customer deposits received by the Borrower or any of its Restricted Subsidiaries in the ordinary course of business; and
(16) the incurrence by the Borrower or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this Section 6.01(b)(16), not a Loan Party to exceed $5.0 million. For purposes of determining compliance with this Section 6.01, in the event that any proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt set forth in Section 6.01(b)(1) through (16) above, or is entitled to be incurred pursuant to Section 6.01(a), the Borrower shall be subject permitted to classify such item of Indebtedness at the time of its incurrence in any manner that complies with this Section 10.4. and (C) Guarantees permitted under this clause (v6.01; provided that any refinancing of amounts incurred in reliance on the exception provided by Section 6.01(b)(1) shall be subordinated deemed to have been incurred in reliance on such Section 6.01(b)(1). Additionally, all or any portion of any item of Indebtedness (other than Indebtedness incurred in reliance on Section 6.01(b)(1)) may later be reclassified as having been incurred pursuant to Section 6.01(a) or under any one of the categories of Permitted Debt set forth in Section 6.01(b)(1) through (16) so long as such Indebtedness is permitted to be incurred pursuant to such provision at the time of reclassification.
(c) Notwithstanding any other provision of Section 6.01, the maximum amount of Indebtedness that may be incurred pursuant to Section 6.01 shall not be deemed to be exceeded with respect to any outstanding Indebtedness due solely to the Obligations result of fluctuations in the exchange rates of currencies.
(d) The Borrower shall not incur any Indebtedness that is contractually subordinate in right of payment to any other Indebtedness of the applicable Subsidiary that Borrower unless it is a Loan Party contractually subordinate in right of payment to the Secured Obligations to the same extent and on extent. No Guarantor shall incur any Indebtedness that is contractually subordinate in right of payment to any other Indebtedness of such Guarantor unless it is contractually subordinate in right of payment to such Guarantor’s Facility Guarantee to the same terms as extent. For purposes of the foregoing, no Indebtedness so Guaranteed is shall be deemed to be contractually subordinated in right of payment to the Obligations;
(A) any other Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisitionGuarantor, construction or improvement as applicable, solely by reason of any fixed Liens or capital assets, including Capital Lease Obligations and any Indebtedness assumed Guarantees arising or created in respect thereof or by virtue of the Borrower or any Subsidiary in connection with fact that the acquisition holders of any such assets secured Indebtedness have entered into intercreditor agreements giving one or secured by a Lien on any such assets prior to the acquisition thereof, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion more of such construction or improvement, and (B) extensions, renewals and replacements of any such Indebtedness so long as holders priority over the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 at any time outstanding;
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
(ix) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred holders in the ordinary course of business;
(x) 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 other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted collateral held by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtednessthem.
(be) Holdings No Subsidiary will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amountStock.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (ORBCOMM Inc.)
Indebtedness; Certain Equity Securities. (a) The Each of the Parent Guarantor and the Borrower will not, and will not permit any Subsidiary of their respective Subsidiaries to, directly or indirectly, create, incur, assume or permit to exist (including by way of Guarantee) any Indebtedness, except:
(i) Indebtedness created incurred and outstanding under the Loan Documents;
(ii) (1) Indebtedness existing on the Effective Date to Remain Outstanding and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replacedPermitted Refinancing thereof;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to any Subsidiary Loan Party and of any Subsidiary to the Borrower or any other Subsidiary, provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any other Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the AgentParty;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (Biv) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any other Subsidiary that is not a Loan Party shall or the Borrower, in each case, to the extent such Indebtedness was permitted to be subject to Section 10.4. incurred hereunder, and (C) Guarantees permitted under this clause (v) shall be if such Indebtedness is subordinated to the Obligations under the Loan Documents, such Guarantee is as subordinated in right of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated payment to the Obligations;
(Av) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided that such Indebtedness is extinguished within five (5) Business Days of its incurrence;
(vi) Indebtedness of the Borrower or any Subsidiary of the Borrower incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, ; provided that (A) such Indebtedness is incurred prior to or within 90 one hundred twenty (120) days after such acquisition or the completion of such construction or improvement, improvement (provided that this subclause (A) shall not apply with respect to fixed or capital assets owned as of and since the Closing Date so long as the proceeds of such Indebtedness incurred after the Closing Date are utilized to repay Loans to the extent required pursuant to Section 2.05(b)(iv)) and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 300,000,000 at any time outstanding;
(viiivii) (A) a Guarantee by Swap Contracts entered into in the Borrower ordinary course of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent business and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstandingfor speculative purposes;
(ixviii) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ worker’s compensation, health, disability or other employee benefits or property, casualty or liability insuranceinsurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such Person;
(ix) Indebtedness of the Borrower and its Subsidiaries in respect of performance bonds, bid bonds, completion guarantees, appeal bonds, surety bonds, bankers’ acceptances and similar obligations and trade-related letters of credit, in each case provided by the Borrower or any of its Subsidiaries in the ordinary course of business and not in connection with indebtedness for money borrowed, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(x) Indebtedness arising from agreements of the Borrower or any Subsidiary in respect of performance bondsthe Borrower providing for indemnification, bid bondsadjustment of purchase price, appeal bonds, surety bonds, performance and completion guarantees and earn-outs or similar obligations (other than in respect of other Indebtedness)obligations, in each case provided case, incurred or assumed in connection with the ordinary course disposition of any business, assets or a Subsidiary of the Borrower, other than Guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary of the Borrower for the purpose of financing such acquisition;
(xi) Indebtedness in respect of Swap Agreements permitted incurred by Section 10.6.Non-Guarantor Subsidiaries and Foreign Subsidiaries which is Non-Recourse Debt;
(xii) Capital any Permitted Sponsor Indebtedness;
(xiii) Prepaid Insurance in an amount not to exceed $15,000,000 at any time outstanding;
(xiv) Permitted Kansas Bond Financing not to exceed $100,000,000 at any time outstanding;
(xv) Permitted IRB Lease Obligations Obligations;
(xvi) Indebtedness assumed in connection with any Permitted Acquisition; provided that such Indebtedness is not incurred in contemplation of such Permitted Acquisition, and modifications, refinancings, refundings, renewals or extensions thereof, so long as (x) no Default or Event of Default then exists or would arise therefrom, (y) the Borrower and its Subsidiaries are in compliance, on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness, with the Financial Covenants recomputed as at the date of the last ended Test Period, as if such incurrence (and any related repayment of other Indebtedness) had occurred on the first day of the relevant Test Period and (z) no more than $150,000,000 in aggregate principal amount of Indebtedness may be outstanding under this subclause (xvii) at any time;
(xvii) Permitted Subordinated Indebtedness, so long as (x) no Default then exists or would arise therefrom and (y) the Borrower and its Subsidiaries are in compliance, on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness, with the Financial Covenants recomputed as at the date of the last ended Test Period, as if such incurrence (and any related repayment of other Indebtedness) had occurred on the first day of the relevant Test Period;
(xviii) other Indebtedness of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby of the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment 100,000,000, of up which $50,000,000 may be secured by Liens to 15.0%) the extent permitted under Section 8.02(xxii), at any time outstanding;
(xix) Permitted Additional Indebtedness, so long as (x) no Default then exists or would arise therefrom and (y) the Borrower and its Subsidiaries are in compliance, on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness, with the Financial Covenants recomputed as at the date of the last ended Test Period, as if such incurrence (and any related repayment of other Indebtedness) had occurred on the first day of the relevant Test Period; and
(xx) upon the occurrence an Airbus Discontinuance or a 787 Discontinuance, Indebtedness arising in connection with obligations to repay advances or progress payments made by Airbus and Boeing, as applicable.
(cb) Neither Holdings nor The Parent Guarantor will not, directly or indirectly, issue any Disqualified Capital Stock other than to the Borrower will, nor or a Subsidiary Loan Party. The Borrower will they not permit any Subsidiary of its Subsidiaries to, directly or indirectly, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or Stock other than to the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amountor a Subsidiary Loan Party.
Appears in 1 contract
Samples: Credit Agreement (Spirit AeroSystems Holdings, Inc.)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1) Indebtedness existing on the Effective Date date hereof and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replaced6.01;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary, ; provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent6.04;
(viv) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, ; provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause 6.04;
(v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
(A) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, ; provided that (1) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, improvement and (B2) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Capital Lease Obligations and Indebtedness permitted by incurred pursuant to this clause (vi) v), when added to the aggregate principal amount of Sale and Leaseback Indebtedness incurred pursuant to Section 6.06, shall not exceed $5,000,000 15,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(viivi) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, date hereof; provided that (A) such Indebtedness exists at the time such Person becomes a Subsidiary and was is not created in contemplation of or in connection with such Person becoming a Subsidiary, (B) such Indebtedness does not prevent the Collateral and extensions, renewals and replacements of Guarantee Requirement from being fully satisfied with respect to any such Indebtedness so long as Subsidiary that is required to become a Subsidiary Loan Party, (C) the principal amount Borrower is in Pro Forma Compliance after giving effect to the acquisition of such extensions, renewals Subsidiary and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that D) the aggregate principal amount of Indebtedness permitted by incurred pursuant to this clause (viivi) shall not exceed $5,000,000 20,000,000 at any time outstanding;
(viiivii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
(ix) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred obtained in the ordinary course of businessbusiness so long as the aggregate amount of the reimbursement obligations (contingent or otherwise) in respect thereof is expressly limited to $15,000,000;
(xviii) 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 other IndebtednessIndebtedness for borrowed money), in each case provided in the ordinary course of business;
(xiix) Indebtedness in respect of Swap Agreements permitted by Section 10.6.6.07;
(xiix) Capital Lease Obligations Indebtedness of the Borrower or any Subsidiary that are incurred prior to arising from the Fifth Amendment Effective Date and result from any arrangement whereby honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its ordinary course of business, whether now owned or hereafter acquired, and thereafter rents or leases provided that such property or other property Indebtedness is extinguished within five Business Days of its incurrence;
(xi) Indebtedness that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable constitutes an Investment permitted under Section 10.11.(a)6.04;
(xii) Indebtedness of Foreign Subsidiaries in an aggregate principal amount at any time outstanding not exceeding $5,000,000;
(xiii) Indebtedness incurred by the Borrower or any Subsidiary representing deferred compensation to employees of the Borrower or any Subsidiary incurred in the ordinary course of business;
(Axiv) Guarantees and/or indemnities Indebtedness consisting of promissory notes issued by the Borrower or any Subsidiary to future, present or former directors, officers, members of management, employees or consultants of the Borrower or any of its Subsidiaries or their respective estates, heirs, family members, spouses or former spouses to finance the purchase or redemption of Equity Interests in the Borrower as permitted by Section 6.08(a)(iii);
(other than in respect of payment of principal or interestxv) Indebtedness incurred by the Borrower or any Subsidiary in respect connection with any Permitted Acquisition consisting of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities obligations in respect of customary non-recourse carveouts indemnification, the adjustment of the purchase price or similar adjustments;
(includingxvi) Indebtedness consisting of obligations of the Borrower or any Subsidiary under deferred compensation or other similar arrangements incurred by such Person in connection with Permitted Acquisitions;
(xvii) Indebtedness incurred by Borrower or any Subsidiary in respect of netting services, without limitation environmental, fraud, misappropriation overdraft protections and bankruptcy matters), similar arrangements in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; andcash management and deposit accounts;
(xivxviii) Guarantees by Indebtedness consisting of (A) the financing of insurance premiums or (B) take-or-pay obligations of the Borrower or any Subsidiary of: contained in supply arrangements, in each case, in the ordinary course of business;
(Axix) Refinancing Indebtedness of the Borrower or any joint venture that is not a SubsidiarySubsidiary incurred in exchange for, provided that such Guarantee and such or the Net Proceeds of which are used to refund, refinance or replace Indebtedness are in effect prior (other than Indebtedness of the Borrower to any Subsidiary or of any Subsidiary to the Fifth Amendment Effective Date Borrower or any other Subsidiary) that was permitted to be incurred under clause (ii), (v), (vi), (xix) or (Bxx) of this Section 6.01(a);
(xx) Permitted Subordinated Indebtedness, without any extensionlimitation as to amount, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such the Borrower and the Subsidiaries are in Pro Forma Compliance;
(xxi) other Indebtedness of the Borrower or Subsidiary guaranteed the Original Indebtedness prior any Subsidiary, in an aggregate principal amount at any time outstanding pursuant to the Fifth Amendment Effective Date this clause (xxi) not in excess of $30,000,000; and
(xxii) all premium (if any), interest (including post-petition interest), fees, expenses, charges and such extension, renewal additional or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid contingent interest and redemption premium on such Indebtednessobligations described above.
(b) Holdings The Borrower will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower willnot, nor will they it permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amountDisqualified Stock.
Appears in 1 contract
Samples: Loan Agreement (Supermedia Inc.)
Indebtedness; Certain Equity Securities. (a) The None of the Borrower will not, and will not permit or any Subsidiary to, will create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1) Indebtedness existing on the Effective Date date hereof and set forth on Schedule 6.01 and Refinancing Indebtedness in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replacedthereof;
(iii) Additional Mortgage Indebtedness and extensionsthe Warrants, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreementextent they constitute Disqualified Equity Interests;
(iv) Indebtedness of the Borrower to any Subsidiary and or of any Subsidiary to the Borrower or any other Subsidiary, ; provided that (A) that such Indebtedness shall not have been transferred or pledged to any other Person, (B) any such Indebtedness owing by any Loan Party shall be subordinated to the Loan Documents Obligations on terms customary for intercompany subordinated Indebtedness, as reasonably determined by the Administrative Agent, and (C) any such Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to incurred in compliance with Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent6.04;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this incurred in compliance with Section (other than clause (a)(ii) or (a)(vii6.04(e)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
(Avi) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations, Synthetic Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition assets, and Refinancing Indebtedness in respect thereof, ; provided that (A) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, improvement and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 US$40,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Subsidiary in a transaction permitted hereunder) after October 6the date hereof, 2006 but prior to the Fifth Amendment Effective Dateor Indebtedness of any Person that is assumed by any Subsidiary in connection with an acquisition of assets by such Subsidiary in a Permitted Acquisition, and Refinancing Indebtedness in respect thereof; provided that (A) such Indebtedness exists at the time such Person becomes a Subsidiary (or is so merged or consolidated) or such assets are acquired and was is not created in contemplation of or in connection with such Person becoming a Subsidiary, Subsidiary (or such merger or consolidation) or such assets being acquired and extensions, renewals and replacements of (B) neither the Borrower nor any Subsidiary (other than such Indebtedness Person or the Subsidiary with which such Person is merged or consolidated or that so long as assumes such Person’s Indebtedness) shall Guarantee or otherwise become liable for the principal amount payment of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 at any time outstandingIndebtedness;
(viii) (A) a Guarantee by the Borrower Indebtedness owed in respect of Indebtedness any overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any automated clearing-house transfers of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstandingfunds;
(ix) Indebtedness owed Qualifying Subordinated Indebtedness; provided that after giving effect to any Person the incurrence thereof (including obligations in respect of letters of credit for A) the benefit of such PersonBorrower’s Leverage Ratio shall not exceed 3.75 to 1.00 and (B) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant the Borrower’s Senior Leverage Ratio shall not exceed 2.00 to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business1.00;
(x) Indebtedness of the Borrower or any Subsidiary in respect of under performance bonds, bid bonds, appeal bonds, surety bonds, performance letter of credit obligations to provide security for worker’s compensation claims and completion guarantees and similar obligations (other than in respect of other Indebtedness)bank overdrafts, in each case provided case, incurred in the ordinary course of business;
(xi) Indebtedness of the Borrower and its Subsidiaries owing to the seller in respect of Swap Agreements permitted by any Permitted Acquisition so long as such Indebtedness (A) is unsecured and subordinated to the Loan Documents Obligations on a basis reasonably satisfactory to the Administrative Agent and (B) does not, when taken together with all other indebtedness incurred pursuant to this Section 10.6.;6.01(a)(xi), exceed more than $10,000,000 at any time outstanding; and
(xii) Capital Lease Obligations other Indebtedness; provided that after giving effect to the incurrence thereof, (A) the Borrower’s Leverage Ratio shall not exceed 3.50 to 1.00 and (B) the Borrower’s Senior Leverage Ratio shall not exceed 1.75 to 1.00.
(b) None of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from will permit Priority Indebtedness (including any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under paragraph (a) of this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%Section 6.01) at any time outstandingto exceed US$40,000,000.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amount.
Appears in 1 contract
Samples: Credit Agreement (Cephalon Inc)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1A) the Second-Lien Term Loans in aggregate principal amount not exceeding $45,000,000, (B) other Indebtedness existing on the Effective Date date hereof and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), 6.01 and (3C) extensions, renewals and replacements of any the Second-Lien Term Loans or such Indebtedness described in clause (1) or (2)other Indebtedness, provided that such extending, renewal or replacement Indebtedness (A1) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose)replaced, (B2) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest interest, fees and redemption premium thereon), and (C3) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replaced and (4) shall be subordinated to the Obligations on the same terms as the Indebtedness being extended, renewed or replaced;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary, provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. 6.04 and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Subsidiary Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent;
(viv) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(iia)(ii)(B) (and extensions, renewals or replacements thereof) or (a)(viia)(vi)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) 6.04, Guarantees permitted under this clause (viv) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the ObligationsObligations and (D) none of the Second-Lien Indebtedness shall be Guaranteed by any Subsidiary, unless such Subsidiary is a Loan Party that has Guaranteed the Obligations pursuant to the Collateral Agreement;
(A) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations Obligations, Synthetic Lease Obligations, Indebtedness incurred in connection with any Permitted Acquisitions and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium payable by the terms of such Indebtedness thereon); provided, however, provided that the aggregate principal amount of Indebtedness permitted by this clause (viv) shall not exceed $5,000,000 10,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(viivi) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Datedate hereof, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was is not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium payable by the terms of such Indebtedness thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (viivi) shall not exceed $5,000,000 10,000,000 at any time outstanding;
(vii) Indebtedness of Foreign Subsidiaries in an aggregate principal amount not to exceed $15,000,000;
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent other secured and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date (other than any Foreign Subsidiary) in an aggregate principal amount not exceeding $5,000,000 10,000,000 at any time outstanding;
(ix) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(x) 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 other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.6.07;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Indebtedness permitted by Section 10.11.(a)6.04;
(xiii) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (Aexcept in the case of daylight overdrafts) Guarantees and/or indemnities drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within ten Business Days of incurrence;
(other than xiv) Indebtedness arising in respect connection with endorsement of payment instruments for deposit in the ordinary course of principal or interestbusiness;
(xv) by the Indebtedness of Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case its Subsidiaries that may be deemed to exist in connection with investments agreements providing for indemnification, purchase price adjustments and similar obligations in connection with acquisitions or Indebtedness otherwise permitted under this Agreementsales of assets and/or businesses; and
(xivi) Guarantees by Specified Holdings Indebtedness to the Borrower extent that the net proceeds thereof are applied to make an investment in accordance with Section 6.04(o) and (ii) unsecured Indebtedness of Holdings and its Subsidiaries owing to the Sponsor or any Subsidiary of: a Sponsor Affiliate that, in the case of this clause (ii), (A) Indebtedness of any joint venture matures on a date that is not a Subsidiaryat least 6 months after the Term Maturity Date, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) the aggregate principal amount of which does not exceed $1,000,000 at any extensionone time outstanding, renewal or replacement of Indebtedness (the “Original Indebtedness”C) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior is subordinated to the Fifth Amendment Effective Date Obligations on terms and such extension, renewal or replacement shall not increase conditions acceptable to Administrative Agent and (D) is otherwise on terms and conditions (including all economic terms and the amount absence of Indebtedness guaranteed except by an amount equal covenants) acceptable to any accrued but unpaid interest and redemption premium on such IndebtednessAdministrative Agent.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness of Holdings except (i) Indebtedness created under the Loan Documents or the Second-Lien Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred preferred Equity Interests or any Disqualified Equity Interests, except in the case of Holdings or the Borrower (orHoldings, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amountInterests.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The None of the Borrower will not, and will not permit or any Subsidiary to, will create, incur, assume or permit to exist any Indebtedness, except:
(ia) Indebtedness created under the Loan Documents;
(ii) (1b) Indebtedness existing on the Effective Date and set forth on Schedule 6.01 and Refinancing Indebtedness in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one respect of any of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replacedforegoing;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(ivc) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary, ; provided that (A) that any such Indebtedness owing by any Loan Party shall be unsecured and, any such Indebtedness in excess of $10,000,000 in the aggregate, shall be subordinated in right of payment to the Loan Document Obligations on terms customary for intercompany subordinated Indebtedness or otherwise reasonably satisfactory to the Administrative Agent, (B) any such Indebtedness owing to any Loan Party shall be evidenced by a promissory note which shall have been pledged pursuant to the Collateral Agreement to the extent required by the Collateral and Guarantee Requirement and (C) any such Indebtedness owing by any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to incurred in compliance with Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent6.04(d);
(vd) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this incurred in compliance with Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations6.04;
(Ai) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations Obligations, purchase money Indebtedness and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, ; provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 10,000,000 at any time outstanding, and any (ii) Refinancing Indebtedness permitted by this in respect of Indebtedness incurred or assumed pursuant to clause (vii) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Dateabove;
(viii) Indebtedness of any Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Subsidiary in a transaction permitted hereunder) after October 6, 2006 but prior to the Fifth Amendment Effective Closing Date, or Indebtedness of any Person that is assumed by any Subsidiary in connection with an acquisition of assets by such Subsidiary in a Permitted Acquisition; provided that such Indebtedness exists at the time such Person becomes a Subsidiary (or is so merged or consolidated) or such assets are acquired and was is not created in contemplation of or in connection with such Person becoming a SubsidiarySubsidiary (or such merger or consolidation) or such assets being acquired, and extensions, renewals and replacements (ii) Refinancing Indebtedness in respect of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced assumed pursuant to clause (plus any accrued but unpaid interest and redemption premium thereon), i) above; provided further that the aggregate principal amount of Indebtedness permitted by this clause (viif) shall not exceed $5,000,000 10,000,000 at any time outstanding;
(viiig) (A) a Guarantee by the Borrower of Indebtedness of Holdings any Borrower or Subsidiary not otherwise permitted under Section 10.1.(b)(iii)this Agreement so long as, at the time of incurrence of such Indebtedness, the Leverage Ratio, calculated on a Pro Forma Basis as of the date of incurrence thereof, is not in excess of 3.00 to 1.00; provided that (i) immediately prior to and immediately after giving effect to the Guarantee permitted incurrence of any such Indebtedness under this clause (viii)(Ag), no Event of Default shall have occurred and be continuing and (ii) no Indebtedness of any Subsidiary that is not a Loan Party shall be subordinated permitted pursuant to this Section 6.01(g) if, at the Obligations time of the incurrence of, and after giving effect to such Indebtedness (and any substantially simultaneous use of the same extent Permitted Amount), the Permitted Amount would be less than zero;
(h) Indebtedness incurred and on owed in respect of any overdrafts or similar protections and related liabilities arising from treasury, depository and cash management services and related obligations or in connection with any automated clearing-house transfers of funds;
(i) Indebtedness in respect of letters of credit, bank guarantees and similar instruments issued for the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness account of the Borrower or any Subsidiary incurred prior to in the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
ordinary course of business supporting obligations under (ixi) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or propertybenefits, casualty or liability insurance, pursuant unemployment insurance and other social security laws and local state and federal payroll taxes, (ii) obligations in connection with self-insurance arrangements in the ordinary course of business and (iii) bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance and reclamation bonds and obligations of a like nature, including, without limitation, performance guarantees;
(j) Indebtedness consisting of client advances or deposits received in the ordinary course of business;
(k) Indebtedness of the Borrower or any Subsidiary in the form of purchase price adjustments (including in respect of working capital), earnouts, seller notes, deferred compensation, deferred purchase price, indemnification or other arrangements representing acquisition consideration or deferred payments of a similar nature incurred in connection with any Permitted Acquisition (or any other acquisition permitted hereunder) or other Investments permitted under Section 6.04 or Dispositions permitted under Section 6.05;
(l) Indebtedness of Subsidiaries that are not Loan Parties; provided that no Subsidiary that is not a Loan Party shall incur any Indebtedness under this Section 6.01(l) if, at the time of, and after giving effect to, the incurrence of such Indebtedness (and any substantially simultaneous use of the Permitted Amount) and the use of proceeds thereof, the Permitted Amount would be less than zero;
(m) Indebtedness relating to reimbursement premium financing arrangements for property and casualty insurance plans and health and welfare benefit plans (including health and workers compensation insurance, employment practices liability insurance and directors and officers insurance), if incurred in the ordinary course of business;
(n) Indebtedness owing under any Hedge Agreements and owing under any Cash Management Agreements;
(o) Indebtedness under performance bonds, surety bonds, release, appeal and similar bonds, statutory obligations or indemnification obligations with respect to such Personworkers’ compensation claims, in each case incurred in the ordinary course of business;
(x) Indebtedness of the Borrower or any Subsidiary , and reimbursement obligations in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations (other than in respect of other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations any of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreementforegoing; and
(xivp) Guarantees by other Indebtedness of Loan Parties not otherwise described above in an aggregate amount at any time outstanding not in excess of $10,000,000; and
(q) intercompany loans or other Indebtedness of BidCo made in order to consummate the Transactions and owed to the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiaryits Subsidiaries. Notwithstanding anything contrary set forth above, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist if any Indebtedness except (i) Indebtedness created under the Loan Documentsis denominated in a foreign currency, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness no fluctuation in respect currency values shall result in a breach of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstandingthis Section 6.01.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amount.
Appears in 1 contract
Samples: 364 Day Bridge Credit Agreement (Aspen Technology Inc /De/)
Indebtedness; Certain Equity Securities. (a) The None of the U.S. Borrower or any Restricted Subsidiary will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) (A) Indebtedness created under the Loan Documents, (B) any Credit Agreement Refinancing Indebtedness and (C) Refinancing Indebtedness in respect of any such Credit Agreement Refinancing Indebtedness;
(ii) (A) any Indebtedness of any Loan Party; provided, that at the time of the incurrence thereof, (1) no Event of Default shall have occurred and be continuing, both immediately prior to and immediately after giving effect to the incurrence of such Indebtedness, (2) such Indebtedness shall comply with the Required Debt Parameters, (3) after giving Pro Forma Effect to the incurrence of such Indebtedness and the use of proceeds thereof, the U.S. Borrower shall be in Pro Forma Compliance with each Financial Maintenance Covenant, in each case recomputed as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of any such financial statements, the last day of the last fiscal quarter included in the Pro Forma Financial Statements) and (4) in the case of Indebtedness in an aggregate principal amount greater than or equal to $25,000,000, the Administrative Agent shall have received a certificate of an Authorized Officer of the U.S. Borrower, dated the date of incurrence of such Indebtedness, confirming compliance with the conditions set forth in the proviso to this clause (ii)(A) and setting forth reasonably detailed calculations in support thereof and (B) any Refinancing Indebtedness in respect of any Indebtedness permitted under clause (A) above or under this clause (B);
(iii) Indebtedness existing on the Effective Signing Date and set forth on Schedule 6.01 and Refinancing Indebtedness in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replaced;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of (A) the U.S. Borrower to or any Subsidiary and of any Restricted Subsidiary to the U.S. Borrower or any other Restricted Subsidiary, ; provided (A) that any such Indebtedness of owing by any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Restricted Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii))unsecured, (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Restricted Subsidiary that is not a Loan Party shall be subject owing to Section 10.4. any other Restricted Subsidiary that is not a Loan Party and (C) Guarantees to the extent permitted under this clause by Section 6.04, any Restricted Subsidiary that is not a Loan Party owing to any Loan Party; provided that any such Indebtedness shall be evidenced by the Intercompany Note;
(v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the ObligationsGuarantees incurred in compliance with Section 6.04;
(Avi) Indebtedness (including Capital Lease Obligations and Synthetic Lease Obligations) of the U.S. Borrower or any Restricted Subsidiary (A) incurred to finance the acquisition, construction construction, repair, replacement, expansion or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, ; provided that such Indebtedness is incurred prior to or within 90 270 days after such acquisition or the completion of such construction construction, repair, replacement, expansion or improvement, improvement and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements Indebtedness does not exceed the principal cost of acquiring, constructing, repairing, replacing, expanding or improving such fixed or capital assets (it being understood that property subject to a Capital Lease Obligation not entered into as part of a Sale/Leaseback Transaction will be deemed acquired at the time such Capital Lease Obligation becomes effective) or (B) assumed in connection with the acquisition of any fixed or capital assets, and Refinancing Indebtedness in respect of any of the Indebtedness being extendedforegoing; provided that, renewed immediately after the incurrence or replaced (plus any accrued but unpaid interest and premium thereon); providedassumption of such Indebtedness, however, that the aggregate principal amount of Indebtedness permitted by (including Capital Lease Obligations and Synthetic Lease Obligations and Refinancing Indebtedness) incurred in reliance on and then outstanding under this clause (vi) shall not exceed the greater of $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on 25,000,000 or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion 2.5% of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective DateConsolidated Total Assets;
(vii) (1) Indebtedness of any Person that becomes a Restricted Subsidiary (or of any Person not previously a Restricted Subsidiary that is merged or consolidated with or into a Restricted Subsidiary) in a transaction permitted under this Agreement, (2) Indebtedness of any Person that is assumed by the U.S. Borrower or any Restricted Subsidiary in connection with an acquisition of assets by the U.S. Borrower or any Restricted Subsidiary in a Permitted Acquisition or other similar Investment permitted by Section 6.04 or (3) Refinancing Indebtedness of any of the foregoing; provided that, in the case of Indebtedness referred to in clauses (1) and (2) above:
(A) both immediately before and immediately after October 6giving effect thereto, 2006 but no Event of Default shall have occurred and be continuing;
(B) after giving Pro Forma Effect to the incurrence or assumption of such Indebtedness, the U.S. Borrower shall be in Pro Forma Compliance with each Financial Maintenance Covenant, in each case recomputed as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the Fifth Amendment Effective Datedelivery of any such financial statements, provided the last day of the last fiscal quarter included in the Pro Forma Financial Statements);
(C) with respect to any Indebtedness of any Person that becomes a Restricted Subsidiary (or of any Person not previously a Restricted Subsidiary that is merged or consolidated with or into a Restricted Subsidiary) or Indebtedness of any Person that is assumed by the U.S. Borrower or any Restricted Subsidiary in connection with the acquisition of assets by the U.S. Borrower or any Restricted Subsidiary, such Indebtedness exists existed at the time such Person becomes became a Restricted Subsidiary and or at the time such assets were acquired and, in each case, was not created in contemplation of thereof or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced therewith;
(plus any accrued but unpaid interest and redemption premium thereon), provided that D) the aggregate principal amount of all Indebtedness permitted incurred and outstanding under this Section 6.01(a)(vii) by this clause (vii) Restricted Subsidiaries that are not Loan Parties, when aggregated with the aggregate principal amount of all Indebtedness of Restricted Subsidiaries that are not Loan Parties incurred and outstanding under Section 6.01(a)(xii), shall not exceed $5,000,000 at any time outstanding;exceed the greater of $75,000,000 and 7.5% Consolidated Total Assets, calculated on a Pro Forma Basis giving effect to the application of proceeds of the applicable Indebtedness, as of the last day of the then most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of any such financial statements, the last day of the last fiscal quarter included in the Pro Forma Financial Statements); and
(E) the Administrative Agent shall have received a certificate of an Authorized Officer of the U.S. Borrower, dated the date of incurrence or assumption of such Indebtedness, confirming compliance with the conditions set forth in clauses (A), (B), (C) and (D), and setting forth reasonably detailed calculations in support thereof.
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Cash Management Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
(ix) Indebtedness owed to any Person (including obligations in respect of letters of netting services, automatic clearing house arrangements, employees’ credit for the benefit of such Person) providing workers’ compensationor purchase cards, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Personoverdraft protections and similar arrangements, in each case incurred in the ordinary course of business; provided that such Indebtedness (other than with respect to credit or purchase cards) shall be repaid in full within ten Business Days of the incurrence thereof;
(ix) Indebtedness in respect of (A) letters of credit, bankers’ acceptances, bank guarantees or similar instruments or facilities issued for the account of the U.S. Borrower or any Restricted Subsidiary in the ordinary course of business supporting obligations under workers’ compensation, unemployment insurance and other social security laws and (B) bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and obligations of a like nature incurred in the ordinary course of business and not in connection with the borrowing of money;
(x) Indebtedness of the U.S. Borrower or any Restricted Subsidiary in respect the form of performance bondsindemnifications, bid bondspurchase price adjustments, appeal bondsearn-outs, surety bonds, performance and completion guarantees and non-competition agreements or other arrangements representing acquisition consideration or deferred payments of a similar obligations (nature incurred in connection with any Permitted Acquisition or other than in respect of other Indebtedness), in each case provided in the ordinary course of businessInvestment permitted by Section 6.04;
(xi) Indebtedness in respect [reserved];Indebtedness of Swap Agreements permitted by Section 10.6.;
any Restricted Subsidiary under one or more Designated Secured Facilities (xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiiiU.S. Collateral Agreement) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) RMB 100,000,000 at any time outstanding.;
(cxii) Neither Holdings nor Indebtedness of any Restricted Subsidiary that is not a Subsidiary Loan Party in an aggregate principal amount, when aggregated with the Borrower willaggregate principal amount of all Indebtedness of Restricted Subsidiaries that are not Loan Parties incurred and outstanding under Section 6.01(a)(vii), nor will they permit not exceeding the greater of $75,000,000 and 7.5% Consolidated Total Assets at any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower time outstanding;
(or, in the case xiii) other Indebtedness of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests Loan Parties in an aggregate principal amount not exceeding the greater of $150,000,000 100,000,000 and 10% Consolidated Total Assets at any time outstanding;
(xiv) unsecured Indebtedness in respect of (A) obligations of the U.S. Borrower or any Restricted Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not in connection with the borrowing of money and (B) intercompany obligations of the U.S. Borrower or any such Preferred Restricted Subsidiary in respect of accounts payable incurred in connection with goods sold or services rendered in the ordinary course of business and not in connection with the borrowing of money;
(xv) obligations of the U.S. Borrower or any Restricted Subsidiary to pay insurance premiums arising in the ordinary course of business and not in connection with the borrowing of money;
(xvi) unsecured Indebtedness consisting of promissory notes issued by any Loan Party to current or former officers, managers, consultants, directors and employees (or their spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) to finance the purchase or redemption of Equity Interests issued of the U.S. Borrower, in each case to the extent permitted by Section 6.08;
(xvii) to the extent constituting Indebtedness, Hedging Obligations pursuant to Hedging Agreements entered into to hedge or mitigate risks to which the U.S. Borrower to Holdings for purposes or any Restricted Subsidiary has actual exposure (other than in respect of matching Preferred Equity Interests issued by Holdings shall be excluded or the credit risk associated with Indebtedness of the U.S. Borrower or any Restricted Subsidiary), including without limitation to effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to another floating rate or otherwise) or currencies with respect to any interest-bearing liability or investment of the calculation U.S. Borrower or any Restricted Subsidiary;
(xviii) (x) Indebtedness incurred in connection with Permitted Securitization Financings in an aggregate principal amount outstanding that, immediately after giving effect to the incurrence of such amountIndebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(a)(xviii) would not exceed the greater of $50,000,000 and 5.0% of Consolidated Total Assets when incurred, created or assumed and (y) any Refinancing Indebtedness in respect thereof;
(xix) to the extent constituting Indebtedness, obligations incurred in connection with Permitted Receivables Financings; and
(xx) (xix) all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (i) through (xviiixix) above.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower Company will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1) Indebtedness existing on the Effective Date date hereof and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), SCHEDULE 6.01 and (3) extensions, renewals and replacements of any such Indebtedness described that do not increase the outstanding principal amount thereof (except to the extent of any reasonable premiums, fees and expenses incurred in clause (1connection with any such extensions, renewals and replacements) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be result in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter decreased weighted average life than the Indebtedness being extended, renewed or replacedthereof;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower Company to any Subsidiary and of any Subsidiary to the Borrower Company or any other Subsidiary, provided (A) ; PROVIDED that Indebtedness of any Subsidiary that is not a Loan Party owing to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. Investments, Loans, Advances, Guarantees and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the AgentAcquisitions;
(viv) Guarantees by the Borrower Company of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower Company or any other Subsidiary, provided ; PROVIDED that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. Investments, Loans, Advances, Guarantees and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the ObligationsAcquisitions;
(Av) Indebtedness of the Borrower Company or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations (other than in respect of leased real property) and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on 107 any such assets prior to the acquisition thereof, provided and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (except to the extent of any reasonable premiums, fees and expenses incurred in connection with any such extensions, renewals and replacements) or result in an earlier maturity date or decreased weighted average life thereof; PROVIDED that (A) before and after giving effect to the incurrence of such Indebtedness, no Default or Event of Default shall have occurred and be continuing, (B) such Indebtedness is incurred prior to or within 90 180 days after such acquisition or the completion of such construction or improvement, improvement and (BC) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness incurred on or after the Effective Date and permitted by this clause (viv) and clause (vii) below, plus the aggregate book value of all assets sold after the Effective Date pursuant to sale and leaseback transactions permitted by clause (b) of Section Sale and Leaseback Transactions shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause 300,000,000;
(vi) that is Without duplication of Indebtedness described in clause (v) hereof, Indebtedness of the Company or any Subsidiary incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned acquisition by the Borrower Company or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 the Effective Date of real property and improvements thereto (but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of inventory or in connection with such Person becoming a Subsidiaryother personal property located therein), and extensions, renewals and replacements of any such Indebtedness so long as that do not increase the outstanding principal amount thereof (except to the extent of any reasonable premiums, fees and expenses incurred in connection with any such extensions, renewals and replacements does not exceed replacements) or result in an earlier maturity date or decreased weighted average life thereof; PROVIDED that (A) before and after giving effect to the principal incurrence of such Indebtedness, no Default or Event of Default shall have occurred and be continuing,(B) the terms of such Indebtedness are commercially reasonable and (C) the secured recourse to the Company or any Subsidiary of such Indebtedness shall be limited to the value of the real property and improvements financed by such Indebtedness;
(vii) Indebtedness being extendedof the Company or any Subsidiary relating to purchase money security interests (as defined in the New York Uniform Commercial Code, renewed as amended); PROVIDED that, (A) before and after giving effect to the incurrence of such Indebtedness, no Default or replaced Event of Default shall have occurred and be continuing, and (plus any accrued but unpaid interest and redemption premium thereon), provided that B) the aggregate principal amount of Indebtedness permitted by this clause (vii) shall be subject to the limitation set forth in the proviso to clause (v) above.
(viii) Guarantees by the Company or any of its Subsidiaries of Indebtedness of third parties given in connection with the acquisition or improvement of real property for use in the business of the Company and its Subsidiaries not exceed exceeding $5,000,000 10,000,000 at any one time outstanding;
(viiiix) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall software licenses required to be subordinated to the Obligations to the same extent and reflected as indebtedness on the same terms Company's consolidated balance sheet in an aggregate amount not exceeding $10,000,000;
(x) without duplication of any other Indebtedness permitted hereunder, liabilities for leases of real property characterized as the Indebtedness so Guaranteed is subordinated to the Obligations and for purposes of GAAP; 108
(Bxi) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 50,000,000 at any time outstanding;
(ixxii) Indebtedness owed on account of the Series A Warrants issued to any Person Yucaipa Corporate Initiatives Fund I, L.P., Yucaipa American Alliance (including obligations Parallel) Fund I, L.P. and Yucaipa American Alliance Fund I, L.P. in respect connection with the Transactions to the extent that GAAP requires such Warrants to be included as a liability on the Consolidated balance sheet of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;Company and its Subsidiaries; and
(xxiii) 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 other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created Borrowers under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) Junior Secured Facilities and (xiii) and (iii) Indebtedness in respect on account of the Convertible Notes Notes, in an aggregate principal amount not exceeding to exceed $150,000,000 (plus an over allotment of up to 15.0%) 500,000,000 outstanding at any time outstanding(or, with respect to the Convertible Notes only, such greater amount as the Administrative Agent, in its discretion, may agree).
(cb) Neither Holdings nor the Borrower willThe Company will not, nor will they the Company permit any Subsidiary to, issue any preferred stock or permit to remain outstanding any other preferred Equity Interests, other than Qualified Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amountStock.
Appears in 1 contract
Samples: Credit Agreement (Great Atlantic & Pacific Tea Co Inc)
Indebtedness; Certain Equity Securities. (a) The Borrower Company will not, and will not permit any Subsidiary to, create, incur, assume or suffer or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents, and any Indebtedness incurred to refinance any such Indebtedness or under a credit facility that replaces in whole or in part the credit facility established hereby, but only to the extent the Revolving Commitments are permanently reduced by the amount so refinanced or by the amount of such replacement facility, as the case may be;
(ii) (1) Indebtedness existing on the Effective Date and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a)6.01, and (3) any extensions, renewals and or replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds extent the principal amount of such Indebtedness is not increased, the final maturity of such Indebtedness is not earlier than that of the Indebtedness being extendedreplaced, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter the weighted average life than to maturity of such Indebtedness is not decreased, such Indebtedness, if subordinated to the Obligations, remains so subordinated on terms not less favorable to the Lenders and the original obligors in respect of such Indebtedness being extended, renewed or replacedremain the only obligors thereon;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) obligations of the Existing Credit AgreementCompany in respect of the Industrial Revenue Bonds;
(iv) Indebtedness under Hedging Agreements entered into to protect the Company and its Subsidiaries from interest or currency exchange rate risks to which they are exposed in the ordinary course of their businesses and not for speculative purposes;
(v) Indebtedness of the Borrower Company or any of its Subsidiaries in connection with trade or standby letters of credit or performance, surety or appeal bonds issued in the ordinary course of business;
(vi) Indebtedness of any Person acquired by the Company or any Subsidiary in a transaction permitted hereunder and existing at the time of such acquisition; provided that (A) such Indebtedness shall not have been incurred in contemplation of such acquisition and (B) neither the Company nor any Subsidiary (other than such Person and its subsidiaries) shall be directly or indirectly liable in respect of such Indebtedness;
(vii) Indebtedness of the Company to any Subsidiary and of any Subsidiary to the Borrower Company or any other Subsidiary, ; provided that (A) that no such Indebtedness shall be transferred to any Person other than the Company or a Subsidiary and (B) any such Indebtedness of any Subsidiary that is not a Loan Party to the Borrower Company or any US Subsidiary that is a Loan Party shall be subject to have been incurred in compliance with Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent6.06;
(vviii) Guarantees by the Borrower Company of Indebtedness or other obligations of any Subsidiary and by any Subsidiary of Indebtedness or other obligations of the Borrower Company or any other Subsidiary, ; provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower Company or any US Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations6.06;
(Aix) Indebtedness of the Borrower Company or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations Obligations, and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition extensions, renewals and replacements of any such assets Indebtedness that do not increase the outstanding principal amount thereof or secured by a Lien on any such assets prior to the acquisition result in an earlier maturity date or decreased weighted average life thereof, ; provided that (A) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of any such Indebtedness does not exceed 90% of the purchase price or the cost of construction or improvement of the related assets and (C) the aggregate principal amount of all Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (viix) shall not exceed $5,000,000 at any time outstanding;
(viiix) the Convertible Senior Debentures; provided that (A) a Guarantee by the Borrower aggregate principal amount of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) Convertible Senior Debentures shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations not exceed $103,500,000 at any time outstanding and (B) no obligations of the Company under the Convertible Senior Debentures shall be Guaranteed by any Subsidiary or secured by any assets of the Company or any of its Subsidiaries; and
(xi) other unsecured Indebtedness of the Borrower Company incurred without violation of the any agreement to which the Company or any Subsidiary incurred prior to is party; provided that the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
(ix) of all Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(x) 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 other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement this clause shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) 75,000,000 at any time outstanding.
(cb) Neither Holdings nor Except as permitted by Section 6.05(c), the Borrower willCompany will not issue any preferred stock or other preferred Equity Interests, nor and will they not permit any Subsidiary to, to issue or permit to remain outstanding any Preferred Equity Interests except in other than to the case of Holdings Company or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amountanother Subsidiary.
Appears in 1 contract
Samples: Credit Agreement (Labone Inc/)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) the Subordinated Debt and the Debentures;
(1iii) other Indebtedness existing on the Effective Date date hereof and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), 6.01 and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall do not be Indebtedness of an obligor that was not an obligor with respect to increase the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a outstanding principal amount that exceeds the principal amount of the Indebtedness being extended, renewed thereof or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have result in an earlier maturity date or shorter decreased weighted average life than the Indebtedness being extended, renewed or replaced;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary, provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. 6.04(d), (e) and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agentf);
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. 6.04(d), (e) and (f), (B) any Guarantee of the Subordinated Debt shall be subject to Section 6.04(f) and (C) Guarantees any such Guarantee shall be permitted only to the extent that such Guarantee would be permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the ObligationsSubordinated Debt Documents;
(Avi) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof, provided that (A) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, improvement and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 10,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Datedate hereof, provided that (A) such Indebtedness exists at the time such Person becomes a Subsidiary and was is not created in contemplation of or in connection with such Person becoming a Subsidiary, Subsidiary and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that B) the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 at any time outstanding, provided that up to $3,000,000 aggregate principal amount of additional Indebtedness shall be permitted under this clause (vii) in connection with investments by the Borrower pursuant to Section 6.04(a) ;
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $10,000,000 at any time outstanding, provided that the aggregate principal amount of Indebtedness of the Borrower's Subsidiaries that are not Loan Parties permitted by this clause (viii) shall not exceed $5,000,000 at any time outstanding;; and
(ix) Indebtedness owed of the Borrower under Hedging Agreements entered into in accordance with Section 6.07, provided that any Indebtedness of or Guarantee by a Subsidiary under clause (iii), clause (iv), clause (v) or clause (viii) of this Section 6.01(a) shall be permitted only to the extent that such Indebtedness or Guarantee would be permitted under the Debentures Indenture.
(b) The Borrower will not, nor will it permit any Person (including obligations Subsidiary to, issue any preferred stock or be or become liable in respect of letters any obligation (contingent or otherwise) to purchase, redeem, retire, acquire or make any other payment in respect of credit for the benefit any shares of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(x) Indebtedness capital stock of the Borrower or any Subsidiary in respect or any option, warrant or other right to acquire any such shares of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations (other than in respect of other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations capital stock except for any obligation of the Borrower or any Subsidiary that are incurred prior to issue preferred stock pursuant to the Fifth Amendment Effective Date and result from any arrangement whereby Rights Agreement, dated as of June 10, 1986, originally between the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such IndebtednessThe Chase Manhattan Bank.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amount.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The MG Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1) Indebtedness existing on the Effective Date and set forth in Schedule 10.1.(a), (27.1(g) Indebtedness existing or otherwise disclosed on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this financial statements referenced in Section 10.1.(a7.1(k)(ii), and (32) extensions, renewals and replacements of any such Indebtedness described in clause set forth on Schedule 7.1(g) (1) or (2other than the Convertible Notes), provided that such extending, renewal or replacement Indebtedness (A) other than in the case of extending, renewing or replacing Indebtedness in respect of the Xxxxxx Hotel, shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replaced;
(iii) Additional Mortgage Nonrecourse Indebtedness of any Subsidiary that is not a Loan Party and extensions, renewals and replacements thereof, obligations of any Loan Party (other than the Florida Borrower or any of its Subsidiaries) in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date respect of such incurrence or extension, renewal or replacement and Customary Nonrecourse Exceptions; provided that after giving effect thereto on a Pro Forma Basisto the incurrence of such Indebtedness, Holdings shall be in pro forma compliance with the Leverage Ratio as defined covenants set forth in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement10.11;
(iv) Indebtedness of the MG Borrower to any Subsidiary and of any Subsidiary to the MG Borrower or any other Subsidiary, provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the MG Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the MG Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms set forth on Exhibit G or as otherwise may be reasonably satisfactory to the Agent;
(v) Guarantees by the MG Borrower of Indebtedness of Holdings or any Subsidiary and by any Subsidiary (other than the Florida Borrower or any of its Subsidiaries) of Indebtedness of the MG Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the MG Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
(A) Indebtedness of the MG Borrower or any Subsidiary (other than the Florida Borrower or any of its Subsidiaries) incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the MG Borrower or any Subsidiary (other than the Florida Borrower or any of its Subsidiaries) in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, provided that such Indebtedness is incurred prior to or within 90 180 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the MG Borrower or its Subsidiaries as of the Fifth Amendment Effective DateSubsidiaries;
(vii) Indebtedness of any Person that becomes a Subsidiary (other than a Subsidiary of the Florida Borrower) after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 at any time outstanding;
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the MG Borrower or any Subsidiary incurred prior to (other than the Fifth Amendment Effective Date Florida Borrower or any of its Subsidiaries) in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
(ix) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(x) Indebtedness of the MG 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 other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations to the extent constituting Indebtedness of the MG Borrower or any Subsidiary that are incurred prior to (other than the Fifth Amendment Effective Date and result from any arrangement whereby the Florida Borrower or such Subsidiary sells any of its Subsidiaries) Investments made pursuant to Section 10.4(l), (m) or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a(q);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the MG Borrower or any Subsidiary (other than the Florida Borrower or any of its Subsidiaries) in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities by the MG Borrower or any Subsidiary (other than the Florida Borrower or any of its Subsidiaries) in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters)Customary Nonrecourse Exceptions, in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; andAgreement and (C) indemnities by the Florida Borrower incurred in the ordinary course of business in connection with the ownership and operation of the Florida Property, including, without limitation, pursuant to contracts for the restoration or renovation of property owned by the Florida Borrower;
(xiv) Guarantees by unsecured Indebtedness incurred solely in connection with the Borrower acquisition of Equity Interests in a Subsidiary or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiarypermitted pursuant to Section 10.4., provided that such Guarantee and such unsecured Indebtedness are in effect prior to the Fifth Amendment Effective Date or (A) shall not exceed $25,000,000 at any time outstanding, (B) shall not have an earlier maturity date or shorter weighted average life than one (1) year after the Termination Date and (C) shall be an obligation incurred by the buyer to the seller in connection with the acquisition of such Equity Interests, and provided further that such unsecured Indebtedness may be guaranteed by a Subsidiary (other than the Florida Borrower or any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (Aits Subsidiaries) so long as such Subsidiary concurrently becomes a Guarantor under the Guaranty;
(xv) unsecured Indebtedness incurred (other than by the Florida Borrower or Subsidiary guaranteed any of its Subsidiaries) to refinance the Original Trust Preferred Securities existing on the Effective Date, provided that such unsecured Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement (A) shall not increase be in a principal amount that exceeds the principal amount of Indebtedness guaranteed except by an amount equal to the Trust Preferred Securities being refinanced (plus any accrued but unpaid interest and redemption premium thereon), (B) shall not have an earlier maturity date or shorter weighted average life than two (2) years after the Termination Date, (C) shall not contain any (i) financial maintenance covenants and (ii) Operational Covenants that are more restrictive than the covenants contained in the Loan Documents and (D) shall have an interest rate of less than 8.675%, and provided further that such unsecured Indebtedness may be guaranteed by a Subsidiary (other than the Florida Borrower or any of its Subsidiaries) so long as such Subsidiary concurrently becomes a Guarantor under the Guaranty;
(xvi) unsecured Indebtedness incurred (other than by the Florida Borrower or any of its Subsidiaries) to refinance the Convertible Notes, provided that such unsecured Indebtedness (A) shall not be in a principal amount that exceeds the principal amount of the Convertible Notes being refinanced (plus any accrued but unpaid interest and redemption premium thereon), (B) shall not have an earlier maturity date or shorter weighted average life than two (2) years after the Termination Date, and (C) shall not contain any (x) financial maintenance covenants (it being understood that this clause shall not limit financial condition covenants that apply solely as conditions to the consummation of specified transactions) and (y) Operational Covenants that are more restrictive than the Operational Covenants contained in the Loan Documents, and provided further that (i) Holdings is in compliance, on a Pro Forma Basis after giving effect to such unsecured Indebtedness, with the covenant contained in Section 10.11., (ii) such unsecured Indebtedness may be guaranteed by a Subsidiary (other than the Florida Borrower or any of its Subsidiaries) so long as such Subsidiary concurrently becomes a Guarantor under the Guaranty and (iii) such unsecured Indebtedness may contain Operational Covenants that are more restrictive than the Operational Covenants contained in the Loan Documents so long as, if the Requisite Lenders shall so request, the Borrowers shall, and shall cause the Guarantors to, enter into such agreements as may be reasonably requested to modify the Loan Documents to contain those of the more restrictive Operational Covenants applicable to such unsecured Indebtedness as may be specified in the request of the Requisite Lenders (it being understood that the incorporation of any such Operational Covenants shall also incorporate any applicable default notice and cure periods included in such unsecured Indebtedness with respect to such incorporated Operational Covenants); and
(xvii) unsecured Indebtedness incurred (other than by the Florida Borrower or any of its Subsidiaries) to refinance Preferred Stock existing on the Effective Date, provided that such unsecured Indebtedness (A) shall not be in a principal amount that exceeds the redemption price of the Preferred Stock being refinanced, (B) shall not have an earlier maturity date or shorter weighted average life than two (2) years after the Termination Date and (C) shall not contain any (i) financial maintenance covenants (it being understood that this clause shall not limit financial condition covenants that apply solely as conditions to the consummation of specified transactions) and (ii) Operational Covenants that are more restrictive than the covenants contained in the Loan Documents, provided further (i) that the Fixed Charge Coverage Ratio, on a Pro Forma Basis after giving effect to such unsecured Indebtedness, shall be greater than or equal to 1.50 to 1.00, (ii) that such unsecured Indebtedness may be guaranteed by a Subsidiary (other than the Florida Borrower or any of its Subsidiaries) so long as such Subsidiary concurrently becomes a Guarantor under the Guaranty and (iii) such unsecured Indebtedness may contain Operational Covenants that are more restrictive than the Operational Covenants contained in the Loan Documents so long as, if the Requisite Lenders shall so request, the Borrowers shall, and shall cause the Guarantors to, enter into such agreements as may be reasonably requested to modify the Loan Documents to contain those of the more restrictive Operational Covenants applicable to such unsecured Indebtedness as may be specified in the request of the Requisite Lenders (it being understood that the incorporation of any such Operational Covenants shall also incorporate any applicable default notice and cure periods included in such unsecured Indebtedness with respect to such incorporated Operational Covenants).
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, Documents and (ii) Indebtedness that would be permitted to be created, incurred or assumed by the MG Borrower or any Subsidiary under Sections 10.1.(a)(v10.1.(a)(ii), (v), (ix), (x), (xi), (xiii), (xiv), (xv), (xvi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstandingxvii).
(c) Neither Holdings nor the MG Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding after the Effective Date any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), for Preferred Equity Interests that (i) are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstandingPreferred Stock or (ii) issued pursuant to the Outperformance Award Program (2011); provided that the Florida Borrower shall not issue any such Preferred Equity Interests issued by after the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amountEffective Date.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1A) the Indebtedness under the First-Lien Credit Agreement in aggregate principal amount not exceeding $180,000,000 plus any increase in such principal amount pursuant to paragraph (viii) below, (B) other Indebtedness existing on the Effective Date date hereof and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), 6.01 and (3C) extensions, renewals and replacements of any such Indebtedness described in clause (1) under the First-Lien Credit Agreement or (2)such other Indebtedness, provided that such extending, renewal or replacement Indebtedness (A1) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose)replaced, (B2) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest interest, fees and redemption premium thereon), and other than in the case of any increase in the principal amount of the First-Lien Credit Agreement pursuant to clause (CA) above or paragraph (viii) below, (3) other than in the case of the Indebtedness under the First-Lien Credit Agreement, shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replaced and (4) other than in the case of the Indebtedness under the First-Lien Credit Agreement, shall be subordinated to the Obligations on the same terms as the Indebtedness being extended, renewed or replaced;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary, provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. 6.04 and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Subsidiary Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent;
(viv) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(iia)(ii)(B) (and extensions, renewals or replacements thereof) or (a)(viia)(vi)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and 6.04, (C) other than in the case of Guarantees of the Indebtedness under the First-Lien Credit Agreement, Guarantees permitted under this clause (viv) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the ObligationsObligations and (D) none of the First-Lien Indebtedness shall be Guaranteed by any Subsidiary, unless such Subsidiary is a Loan Party that has Guaranteed the Obligations pursuant to the Collateral Agreement;
(A) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations Obligations, Synthetic Lease Obligations, Indebtedness incurred in connection with any Permitted Acquisitions and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium payable by the terms of such Indebtedness thereon); provided, however, provided that the aggregate principal amount of Indebtedness permitted by this clause (viv) shall not exceed $5,000,000 12,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(viivi) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Datedate hereof, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was is not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium payable by the terms of such Indebtedness thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (viivi) shall not exceed $5,000,000 12,000,000 at any time outstanding;
(vii) Indebtedness of Foreign Subsidiaries in an aggregate principal amount not to exceed $18,000,000;
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent other secured and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date (other than any Foreign Subsidiary) in an aggregate principal amount not exceeding $5,000,000 12,000,000 at any time outstandingoutstanding (which Indebtedness may be, but need not be, in the form of additional Indebtedness under the First-Lien Credit Agreement);
(ix) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(x) 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 other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.6.07;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Indebtedness permitted by Section 10.11.(a)6.04;
(xiii) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (Aexcept in the case of daylight overdrafts) Guarantees and/or indemnities drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within ten Business Days of incurrence;
(other than xiv) Indebtedness arising in respect connection with endorsement of payment instruments for deposit in the ordinary course of principal or interestbusiness;
(xv) by the Indebtedness of Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case its Subsidiaries that may be deemed to exist in connection with investments agreements providing for indemnification, purchase price adjustments and similar obligations in connection with acquisitions or Indebtedness otherwise permitted under this Agreementsales of assets and/or businesses; and
(xivi) Guarantees by Specified Holdings Indebtedness to the Borrower extent that the net proceeds thereof are applied to make an investment in accordance with Section 6.04(o) and (ii) unsecured Indebtedness of Holdings and its Subsidiaries owing to the Sponsor or any Subsidiary of: a Sponsor Affiliate that, in the case of this clause (ii), (A) Indebtedness of any joint venture matures on a date that is not a Subsidiaryat least 6 months after the Term Maturity Date, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) the aggregate principal amount of which does not exceed $1,200,000 at any extensionone time outstanding, renewal or replacement of Indebtedness (the “Original Indebtedness”C) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior is subordinated to the Fifth Amendment Effective Date Obligations on terms and such extension, renewal or replacement shall not increase conditions acceptable to Administrative Agent and (D) is otherwise on terms and conditions (including all economic terms and the amount absence of Indebtedness guaranteed except by an amount equal covenants) acceptable to any accrued but unpaid interest and redemption premium on such IndebtednessAdministrative Agent.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness of Holdings except (i) Indebtedness created under the Loan Documents or the First-Lien Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred preferred Equity Interests or any Disqualified Equity Interests, except in the case of Holdings or the Borrower (orHoldings, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amountInterests.
Appears in 1 contract
Samples: Second Lien Credit Agreement (RedPrairie Holding, Inc.)
Indebtedness; Certain Equity Securities. (a) The Borrower Borrowers will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) Indebtedness under the Amended Acquired Company Credit Agreement and the Existing Mortgage Loan;
(1iii) Indebtedness in respect of the Convertible Notes and extensions, renewals and replacements of such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof; provided that (a) any such refinancing Indebtedness shall be unsecured and (b) only the Company may become obligated with respect to any such refinancing Indebtedness;
(iv) Indebtedness existing on the Effective Date and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), 6.01 and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall do not be Indebtedness of an obligor that was not an obligor with respect to increase the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a outstanding principal amount that exceeds the principal amount of the Indebtedness being extended, renewed thereof or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have result in an earlier maturity date or shorter decreased weighted average life than the Indebtedness being extended, renewed thereof or replacedadd any new obligor or any security in respect thereof;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(ivv) Indebtedness of the Borrower Company to any Subsidiary and of any Subsidiary to the Borrower Company or any other Subsidiary, Subsidiary (including in connection with the lease of the Distribution Center with Xxxxxxxx); provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent6.04;
(vvi) Guarantees by the Borrower Company of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower Company or any other Subsidiary, Subsidiary (including Guarantees of the obligations of Xxxxxxxx under the lease of the Distribution Center); provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
(A) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date6.04;
(vii) Indebtedness in respect of any Person that becomes a Subsidiary after October 6netting services, 2006 but prior overdraft protections (in an aggregate amount not to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 1,000,000 at any time outstanding;) and otherwise in connection with deposit and checking accounts; and
(viii) (A) a Guarantee by the Borrower of other Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 250,000,000 at any time outstanding;
(ix) , which may be secured by real property and interests therein and by other assets to the extent permitted by Section 6.02(e); provided, that any such Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or secured by assets other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case than real property and interests therein shall have been incurred in the ordinary course of business;
(x) Indebtedness of the Borrower or any Subsidiary in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance business and completion guarantees and similar obligations (other than in respect of other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding greater than $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding20,000,000.
(cb) Neither Holdings nor the The Borrower willwill not, nor and will they not permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are not Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstandingCapital Stock, other than to the Borrower or a Subsidiary; provided that any such Preferred issuance of Equity Interests issued by the Borrower of any Subsidiary that is not a Loan Party to Holdings for purposes of matching Preferred Equity Interests issued by Holdings any Loan Party shall be excluded from the calculation of such amountsubject to Section 6.04.
Appears in 1 contract
Samples: Credit Agreement (Dress Barn Inc)
Indebtedness; Certain Equity Securities. (a) The Borrower No Loan Party will, or will not, and will not permit any Subsidiary of its subsidiaries to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan DocumentsDocuments and any letter of credit application delivered hereunder;
(ii) (1A) Indebtedness existing on the Effective Date (other than under the High Yield Notes) and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), 6.01 and (3) any extensions, renewals renewals, refinancings and replacements of any such Indebtedness described in clause that (1x) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall do not be Indebtedness of an obligor that was not an obligor with respect to increase the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a outstanding principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced thereof (plus any unpaid accrued but unpaid interest interest, customary fees and redemption premium thereon), (y) have a later or equal final maturity and (C) shall not have an earlier maturity date longer or shorter equal weighted average life than the Indebtedness being extended, renewed renewed, refinanced or replacedreplaced and (z) the covenants, events of default and other provisions thereof (including any Guarantees thereof) shall be, in the aggregate, not materially less favorable to the Lenders and the applicable Loan Parties than those contained in the Indebtedness being extended, renewed, refinanced or replaced and (B) the High Yield Notes and the Guarantees by any Loan Party of the High Yield Notes (including any notes and Guarantees by any Loan Party issued in exchange therefor in accordance with the registration rights document entered into in connection with the issuance of the High Yield Notes and the Guarantees thereof by any Loan Party) and any extensions, renewals, refinancings and replacements thereof, so long as (a) no Event of Default at the time any such extension, renewal, refinancing or replacement is entered into has occurred and is continuing or would result therefrom and (b) such extension, renewal, refinancing or replacement is unsecured and otherwise complies with all of clauses (x), (y) and (z) of Section 6.01(ii)(A) with respect to such extensions, renewals, refinancings and replacements;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower any Loan Party to any Subsidiary and another Loan Party or a subsidiary of any Subsidiary to the Borrower or any other Subsidiary, Holdings; provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary Person that is not a Loan Party shall be subject to Section 10.4. and 6.04;
(Civ) Guarantees permitted under this clause by any Loan Party of Indebtedness or other obligations of any other Loan Party or any other subsidiary of Holdings; provided that Guarantees by any Loan Party of Indebtedness or other obligations of any Person that is not a Loan Party shall be subject to Section 6.04;
(v) shall be subordinated to the Obligations Indebtedness of the applicable Subsidiary that is a any Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
(A) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction construction, maintenance, addition, replacement, refurbishment or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (plus unpaid accrued interest, customary fees and premium thereon); provided that (A) such Indebtedness is incurred prior to or within 90 180 days after such acquisition or the completion of such construction construction, maintenance, addition, replacement, refurbishment or improvement, improvement and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding aggregate principal amount of such extensions, renewals and replacements does Indebtedness permitted by this clause (v) shall not exceed $5,000,000;
(vi) Indebtedness of any Person that becomes a Loan Party after the principal Effective Date; provided that (A) such Indebtedness exists at the time such Person becomes a subsidiary of the Indebtedness being extended, renewed or replaced Holdings and is not created in connection with such Person becoming a Loan Party and (plus any accrued but unpaid interest and premium thereon); provided, however, that B) the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date5,000,000;
(vii) so long as no Event of Default has occurred, is continuing or would result therefrom, Indebtedness of any Person that becomes a Subsidiary Loan Party to finance the acquisition of one new or used Vessel after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), ; provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 at any time outstandingLeverage Ratio immediately prior to and after giving effect to such acquisition is less than 4.00 to 1.00;
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior subsidiary thereof under any Swap Agreement permitted pursuant to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstandingSection 6.07;
(ix) Earnouts, indemnities and purchase price adjustments pursuant to the Acquisition or a Permitted Acquisition;
(x) Indebtedness owed arising pursuant to any Person the terms of the Guarantee and Indemnity Agreement;
(including xi) obligations in respect of letters of credit performance, bid, tender, appeal and surety bonds and completion Guarantees (in each case other than for an obligation for money borrowed) provided for the benefit of such Persona Loan Party in the ordinary course of business;
(xii) providing workers’ compensationIndebtedness in connection with Liens permitted by clause (h) of Section 6.02;
(xiii) Indebtedness in respect of taxes, healthassessments, disability governmental charges or other employee benefits levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with Section 5.08;
(xiv) endorsements for collection, deposit or property, casualty negotiation and warranties of products or liability insurance, pursuant to reimbursement or indemnification obligations to such Personservices, in each case incurred in the ordinary course of business;
(xxv) Indebtedness obligations on account 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 other Indebtedness), in each case provided non-current accounts payable incurred in the ordinary course of businessbusiness which any Loan Party or any subsidiary of such Loan Party is contesting in good faith and by appropriate proceedings diligently conducted and with respect to which adequate reserves have been established and are being maintained in accordance with GAAP;
(xixvi) Indebtedness constituting contingent liabilities arising under, relating to, or in connection with, any employment agreement of any Loan Party or any subsidiary of such Loan Party, in an aggregate principal amount at any time outstanding not to exceed $5,000,000 so long as such Indebtedness is not secured and is subordinated to the Obligations on terms reasonably acceptable to the Administrative Agent;
(xvii) Indebtedness described in Section 6.04(d);
(xviii) Indebtedness consisting of fees and any deferred portion thereof owed under the Management Agreement;
(xix) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date employee benefit plans and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its businessprograms, whether now owned to current or hereafter acquiredretired employees, including, without limitation, accrued expenses, pension liabilities, deferred compensation, bonus plans, option plans, medical, dental and thereafter rents or leases such property or other property that it intends health plans and other similar plans providing benefits to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined employees entered into in the Existing Credit Agreement shall ordinary course of business (but not exceed the ratio then applicable including Indebtedness under Section 10.11.(aemployment agreements);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (Axx) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes Foreign Subsidiaries in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) 2,500,000 at any time outstanding.;
(cxxi) Neither Holdings nor Indebtedness arising from judgments, orders or other awards to the Borrower willextent not constituting an Event of Default;
(xxii) so long as no Event of Default shall have occurred and be continuing or would result therefrom, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case additional issuances of the Trust Preferred SecuritiesHigh Yield Notes (or any extension, MHG Capital Trust Irenewal, refinancing or replacement thereof that complies with Section 6.01(ii), Preferred Equity Interests ); provided that are Qualified Equity Interests the Leverage Ratio immediately prior to and after giving effect to such issuance is less than 4.25 to 1.00;
(xxiii) Indebtedness issued pursuant to Section 6.08(a)(iv); and
(xxiv) other Indebtedness of the Loan Parties and their subsidiaries not secured by any Collateral in an aggregate principal amount not exceeding $150,000,000 10,000,000 (or following consummation of the Specified IPO, $15,000,000), at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amount.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Neither the Borrower will not, and will not permit nor any Subsidiary to, will create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1) Indebtedness existing on the Restatement Effective Date and set forth on Schedule 6.01 and Refinancing Indebtedness in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replacedthereof;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to any Subsidiary and of or any Subsidiary to the Borrower or any other Subsidiary, ; provided that (A) such Indebtedness shall not have been transferred to any Person other than the Borrower or any Subsidiary, (B) any such Indebtedness owing by any Loan Party shall be subordinated to the Loan Document Obligations on terms customary for intercompany subordinated Indebtedness, as reasonably determined by the Administrative Agent, (C) any such Indebtedness owing to any Loan Party shall be evidenced by a promissory note that shall have been pledged pursuant to the Collateral Agreement and (D) any such Indebtedness of owing by any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to incurred in compliance with Section 10.4. and 6.04;
(Biv) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the AgentGuarantees incurred in compliance with Section 6.04;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
(A) Indebtedness of the Borrower or any Subsidiary (A) incurred to finance the acquisition, construction or and improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, Obligations; provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, improvement and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements Indebtedness does not exceed the principal cost of acquiring, constructing or improving such fixed or capital assets, or (B) assumed in connection with the acquisition of any fixed or capital assets, and Refinancing Indebtedness in respect of any of the foregoing; provided that the aggregate principal amount of Indebtedness being extendedpermitted by this clause (v) shall not exceed $25,000,000 at any time outstanding;
(vi) Indebtedness of the Borrower or any Subsidiary (A) incurred to finance the acquisition, renewed construction and improvement of any real property, provided that such Indebtedness is incurred prior to or replaced within 90 days after such acquisition and the principal amount of such Indebtedness does not exceed the cost of acquiring such real property or (plus B) assumed in connection with the acquisition of any accrued but unpaid interest real property, and premium thereon)Refinancing Indebtedness in respect of any of the foregoing; provided, however, provided that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 25,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Subsidiary in a transaction permitted hereunder) after October 6the date hereof, 2006 but prior to or Indebtedness of any Person that is assumed by the Fifth Amendment Effective DateBorrower or any Subsidiary in connection with an acquisition of assets by the Borrower or such Subsidiary in a Permitted Acquisition, provided that (A) such Indebtedness exists at the time such Person becomes a Subsidiary (or is so merged or consolidated) or such assets are acquired and was is not created in contemplation of or in connection with such Person becoming a SubsidiarySubsidiary (or such merger or consolidation) or such assets being acquired and (B) neither the Borrower nor any Subsidiary (other than such Person or the Subsidiary with which such Person is merged or consolidated or the Person that so assumes such Person’s Indebtedness) shall Guarantee or otherwise become liable for the payment of such Indebtedness, and extensions, renewals and replacements Refinancing Indebtedness in respect of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), foregoing; provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) that is secured or is owing by any Subsidiary that is not a Loan Party shall not exceed $5,000,000 25,000,000 at any time outstanding;
(viii) (A) a Guarantee by the Borrower Indebtedness owed in respect of any overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any automated clearing-house transfers of funds; provided that such Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness repaid in full within five Business Days of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstandingincurrence thereof;
(ix) Indebtedness owed to any Person (including obligations in respect under bonds securing the performance of letters of credit for the benefit of such Person) providing workers’ compensationbids, healthtenders, disability contracts or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case leases incurred in the ordinary course of business;
(x) Indebtedness endorsement of the Borrower or any Subsidiary in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance instruments and completion guarantees and similar obligations (other than in respect of other Indebtedness), in each case provided in the ordinary course of businesspayment items for deposit;
(xi) other Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 175,000,000 at any time outstanding; provided that the aggregate principal amount of Indebtedness permitted by this clause (xi) that (A) is secured, (B) is owing by any Subsidiary that is not a Loan Party or (C) in the case of any such Preferred Equity Interests issued by Indebtedness of the type referred to in clause (a) or (b) of the definition of the term “Indebtedness”, (1) has the stated final maturity that is, or upon nonsatisfaction of certain conditions could be, earlier than the date 90 days after the later of the latest Maturity Date and the latest Revolving Maturity Date in effect on the date of incurrence of such Indebtedness or (2) to the extent that any Term Loans are then outstanding, has a weighted average life to maturity that is shorter than the weighted average life to maturity of each Class of the Term Loans remaining as of the date of such incurrence, shall not exceed $35,000,000 at any time outstanding;
(xii) Approved Convertible Debt and Refinancing Indebtedness in respect thereof; and
(xiii) other unsecured Indebtedness; provided that, at the time of incurrence of such unsecured Indebtedness (A) no Default shall have occurred and be continuing or would result therefrom, (B) such unsecured Indebtedness has a stated final maturity that is, or upon nonsatisfaction of certain conditions could be, no earlier than the date 90 days after the later of the latest Maturity Date and the latest Revolving Maturity Date in effect on the date of such Indebtedness, (C) the representations, covenants and events of default, taken as a whole, in respect of such Indebtedness are no more restrictive on the applicable Loan Party than the representations, covenants and Events of Default hereof, taken as a whole, (D) the Borrower shall be in compliance with the covenants set forth in Sections 6.12 and 6.13 at the end of the last fiscal quarter of the Borrower for which financial statements have been delivered to Holdings the Lenders pursuant to Section 5.01(a) or (b), both on an actual basis and on a pro forma basis in accordance with Section 1.04(b), and (E) (I) after giving effect to the incurrence thereof, the Net Leverage Ratio shall be less than 4.00 to 1.00 at the end of the last fiscal quarter of the Borrower for which financial statements have been delivered to the Lenders pursuant to Section 5.01(a) or (b) calculated on a pro forma basis in accordance with Section 1.04(b) and (II) the Borrower shall deliver a certificate in a form reasonably acceptable to the Administrative Agent (including reasonably detailed supporting calculations related to the matters set forth in such certificate) signed by a Financial Officer of the Borrower evidencing such pro forma compliance with this clause (E) and setting forth as of the date of incurrence of such Indebtedness a detailed calculation of the Net Leverage Ratio on a pro forma basis in accordance with Section 1.04(b) after giving effect to the incurrence of such Indebtedness and, if applicable, any Material Acquisition (an “Unsecured Debt Incurrence Compliance Certificate”); provided, further, that the Loan Parties shall have the right, exercisable not more than two (2) times during the term of this Agreement, to increase the maximum Net Leverage Ratio solely for purposes of matching Preferred Equity Interests issued this clause (E) to 4.50 to 1.00 with respect to any Indebtedness incurred on or within one year after the date of the consummation of a Material Acquisition by Holdings giving written notice to the Administrative Agent within ten (10) Business Days of such Material Acquisition (or such later date as the Administrative Agent may agree to); provided, further, that notwithstanding anything to the contrary herein, upon the incurrence of such Indebtedness under this clause (xiii), the Applicable Rate shall be excluded from recalculated on a pro forma basis based on such Unsecured Debt Incurrence Compliance Certificate but only to the calculation extent that such recalculation would result in the Borrower being in a higher Category in the definition of Applicable Rate based on such Net Leverage Ratio, in which event such higher pricing shall take effect on the date of the incurrence of such amountIndebtedness.
(b) Neither the Borrower nor any Subsidiary will issue or permit to exist any Disqualified Equity Interests.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower Company will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents and the Pre-Petition Loan Documents;
(ii) (1) Indebtedness existing on the Effective Date date hereof and set forth in on Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replaced6.01;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) unsecured Indebtedness of the Borrower Company to any Subsidiary and of any Subsidiary to the Borrower Company or any other Subsidiary, ; provided that (A) that such Indebtedness of shall not have been transferred to any Subsidiary that is not a Person other than the Company or any Subsidiary, (B) any such Indebtedness owing by any Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be unsecured, subordinated in right of payment to the Obligations on terms reasonably satisfactory to and the AgentPre-Petition Lender Obligations and (C) any such Indebtedness shall be incurred in compliance with Section 6.04;
(iv) Guarantees incurred in compliance with Section 6.04;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower Company or any other Subsidiary, provided that Subsidiary permitted by the Approved Budget (including with respect to any Permitted Variances) (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
(A) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereofSynthetic Lease Obligations, provided that such Indebtedness is incurred prior to or within 90 270 days after such acquisition or the completion of such construction or improvement, improvement and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements Indebtedness does not exceed the principal cost of acquiring, constructing or improving such fixed or capital assets or (B) assumed in connection with the acquisition of any fixed or capital assets, and Refinancing Indebtedness in respect of any of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), foregoing; provided that the aggregate principal amount of Indebtedness permitted by this clause (viiv) at the time of incurrence thereof shall not exceed $5,000,000 at 1,000,000;
(vi) Indebtedness in respect of netting services, overdraft protections and deposit and checking accounts, in each case, in the ordinary course of business;
(vii) Indebtedness in respect of letters of credit, bank guarantees and similar instruments issued for the account of the Company or any time outstandingSubsidiary in the ordinary course of business supporting obligations under workers’ compensation, health, disability, unemployment insurance and other social security laws;
(viii) (A) a Guarantee Indebtedness permitted by the Borrower of Approved Budget (including with respect to any Permitted Variances);
(ix) [reserved];
(x) Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided (i) the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date Pre-Petition Term Credit Agreement in an aggregate principal amount not exceeding to exceed $5,000,000 1,271,597,089.65 and (ii) the Term Credit Agreement in an aggregate principal amount not to exceed $312,342,704.17 at any time outstanding, provided that the Term Loan Facility shall at all times be subject to the Intercreditor Agreement as supplemented by the Intercreditor Acknowledgment;
(ixxi) Indebtedness owed to any Person (including obligations of Loan Parties in respect of letters surety bonds (whether bid, performance, appeal or otherwise) and performance and completion guarantees and other obligations of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Persona like nature, in each case incurred in the ordinary course of business;
(xxii) the Carve Out;
(xiii) Indebtedness incurred under leases of the Borrower or any Subsidiary real property in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance tenant improvements;
(xiv) [reserved];
(xv) other unsecured Indebtedness in an aggregate principal amount not to exceed at the time of incurrence thereof $4,000,000 permitted by the Approved Budget (including with respect to any Permitted Variances);
(xvi) Indebtedness consisting of (A) the financing of insurance premiums and completion guarantees and similar (B) take-or-pay obligations (other than contained in respect of other Indebtedness)supply arrangements, in each case provided case, in the ordinary course of business;
(xixvii) obligations under any agreement governing the provision of treasury or cash management services, including deposit accounts, overnight draft, credit cards, debit cards, p-cards (including purchasing cards and commercial cards), funds transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade finance services and other cash management services; and
(xviii) Indebtedness in respect the form of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness6.07.
(b) Holdings will The accrual of interest, the accretion of accreted value and the payment of interest or dividends in the form of additional Indebtedness or Disqualified Stock, as applicable, the accretion of original issue discount, the accretion of liquidation preference and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies shall not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted deemed to be created, incurred an incurrence of Indebtedness or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(vDisqualified Stock for purposes of Section 6.01(a), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor Notwithstanding any of the Borrower willforegoing, nor will they permit any Subsidiary tono Indebtedness permitted under this Section 6.01 shall be permitted to have an administrative expense claim status under the Bankruptcy Code senior to or pari passu with the superpriority administrative expense claims of (i) the Administrative Agent and the Lenders and (ii) the Pre-Petition Agent and the Pre-Petition Lenders, issue or permit to remain outstanding any Preferred Equity Interests except in each case, as set forth herein and in the case of Holdings or the Borrower Final Order, other than, solely with respect to Collateral that is not ABL Priority Collateral (or, as defined in the case of the Trust Preferred Securities, MHG Capital Trust IIntercreditor Agreement), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by Indebtedness under the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amountTerm Credit Agreement permitted under Section 6.01(a)(x).
Appears in 1 contract
Samples: Senior Secured Debtor in Possession Credit Agreement (Ascena Retail Group, Inc.)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1) Indebtedness existing on the Effective Date date hereof and set forth in Schedule 10.1.(a), (27.1.(g) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2)Indebtedness, provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replaced and (D) shall not have terms (including covenants, events of default, remedies, redemption provisions and sinking fund provisions, but excluding financial terms such as interest rates and redemption provisions) less favorable in any material respect to the Lenders than the terms of the Indebtedness being extended, renewed or replaced;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date thereof if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement);
(iv) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary, provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
(A) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Datedate hereof, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 at any time outstanding;
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
(ix) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(x) 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 other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result resulting from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters (including environmental, fraud, misappropriation, bankruptcy and (B) Guarantees and/or indemnities in respect of other customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matterscarveouts), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) of Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, Documents and (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding).
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I)Borrower, Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amount.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Each of the Parent Guarantor and the Borrower will not, and will not permit any Subsidiary of their respective Subsidiaries to, directly or indirectly, create, incur, assume or permit to exist (including by way of Guarantee) any Indebtedness, except:
(i) Indebtedness created incurred and outstanding under the Loan Documents;
(ii) (1) Indebtedness existing on the Effective Date and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replaced[Reserved];
(iii) Additional Mortgage Indebtedness to Remain Outstanding and extensions, renewals and replacements any Permitted Refinancing thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to any Subsidiary Loan Party and of any Subsidiary to the Borrower or any other Subsidiary, provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any other Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the AgentParty;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any other Subsidiary that is not a Loan Party shall or the Borrower, in each case, to the extent such Indebtedness was permitted to be subject to Section 10.4. incurred hereunder, and (C) Guarantees permitted under this clause (v) shall be if such Indebtedness is subordinated to the Obligations under the Loan Documents, such Guarantee is as subordinated in right of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated payment to the Obligations;
(Avi) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided that such Indebtedness is extinguished within five Business Days of its incurrence;
(vii) Indebtedness of the Borrower or any Subsidiary of the Borrower incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, ; provided that (A) such Indebtedness is incurred prior to or within 90 120 days after such acquisition or the completion of such construction or improvement, improvement (provided that this subclause (A) shall not apply with respect to fixed or capital assets owned as of and since the Original Effective Date so long as the proceeds of such Indebtedness incurred after the Original Effective Date are utilized to repay Loans to the extent required pursuant to Section 2.05(c)(iii)) and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 75.0 million at any time outstanding;
(viii) (A) a Guarantee by Hedging Agreements entered into in the Borrower ordinary course of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent business and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstandingfor speculative purposes;
(ix) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ worker’s compensation, health, disability or other employee benefits or property, casualty or liability insuranceinsurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(x) Indebtedness of the Borrower or any Subsidiary and its Subsidiaries in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees bankers’ acceptances and similar obligations (other than in respect and trade-related letters of other Indebtedness)credit, in each case provided in the ordinary course of business and not in connection with indebtedness for money borrowed, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations arising from agreements of the Borrower or any Subsidiary that are of the Borrower providing for indemnification, adjustment of purchase price, earn-outs or similar obligations, in each case, incurred prior to or assumed in connection with the Fifth Amendment Effective Date disposition of any business, assets or a Subsidiary of the Borrower, other than Guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary of the Borrower for the purpose of financing such acquisition;
(xii) obligations in respect of performance and result from any arrangement whereby surety bonds and completion guarantees provided by the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in of its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined Subsidiaries in the Existing Credit Agreement shall ordinary course of business and not exceed the ratio then applicable under Section 10.11.(a)in connection with indebtedness for money borrowed;
(xiii) Indebtedness incurred by Non-Guarantor Subsidiaries and Foreign Subsidiaries which is Non-Recourse Debt;
(Axiv) Guarantees and/or indemnities any Permitted Sponsor Indebtedness;
(xv) Prepaid Insurance in an amount not to exceed $15.0 million at any time outstanding;
(xvi) Permitted Kansas Bond Financing not to exceed $100.0 million at any time outstanding;
(xvii) Permitted IRB Lease Obligations;
(xviii) Indebtedness assumed in connection with any Permitted Acquisition; provided that such Indebtedness is not incurred in contemplation of such Permitted Acquisition, and modifications, refinancings, refundings, renewals or extensions thereof, so long as (x) no Default then exists or would arise therefrom, (y) the Borrower and its Subsidiaries are in compliance, on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness, with the covenant contained in Section 6.13 recomputed as at the date of the last ended Test Period, as if such incurrence (and any related repayment of other Indebtedness) had occurred on the first day of the relevant Test Period and (z) no more than $40.0 million in respect aggregate principal amount of payment Indebtedness may be outstanding under this subclause (xviii) at any time;
(xix) Permitted Subordinated Indebtedness, so long as (x) no Default then exists or would arise therefrom, (y) the Borrower and its Subsidiaries are in compliance, on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness, with the covenant contained in Section 6.13 recomputed as at the date of the last ended Test Period, as if such incurrence (and any related repayment of other Indebtedness) had occurred on the first day of the relevant Test Period and (z) no more than $40.0 million in aggregate principal or interestamount of Permitted Subordinated Indebtedness may be outstanding under this subclause (xix) by at any time; and
(xx) other unsecured Indebtedness of the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) 50.0 million at any time outstanding.
(cb) Neither Holdings nor The Parent Guarantor will not, directly or indirectly, issue any Disqualified Capital Stock other than to the Borrower will, nor or a Subsidiary Loan Party. The Borrower will they not permit any Subsidiary of its Subsidiaries to, directly or indirectly, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or Stock other than to the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amountor a Subsidiary Loan Party.
Appears in 1 contract
Samples: Credit Agreement (Spirit AeroSystems Holdings, Inc.)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit None of the Company or any Subsidiary to, will create, incur, assume or permit to exist any Indebtedness, except:
(ia) Indebtedness created under the Loan Documents;
(ii) (1b) Indebtedness existing on the Effective Closing Date and set forth on Schedule 6.01 and Refinancing Indebtedness in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one respect of any of the other subsections of this Section 10.1.(a), foregoing;
(c) intercompany Indebtedness among the Company and its Subsidiaries; provided that (3A) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus owing by any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replaced;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary, provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated in right of payment to the Loan Document Obligations pursuant to the Intercompany Note or on terms reasonably satisfactory (x) at least as favorable to the Lenders as those set forth in the form of Intercompany Note attached as Exhibit L or (y) customary for intercompany subordinated Indebtedness or reasonably acceptable to the Administrative Agent;
(v) Guarantees ; provided that a written subordination agreement shall not be required if the Company and its Subsidiaries are not required to evidence such Indebtedness by an Intercompany Note or a promissory note pursuant to the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness terms of the Borrower or any other Subsidiary, provided Collateral and Guarantee Requirement and the aggregate amount of all such Indebtedness that is not subject to a written subordination agreement satisfying the requirements of this clause (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii))shall not exceed $20,000,000 at any time outstanding, (B) Guarantees any such Indebtedness owing to any Loan Party shall be evidenced by an Intercompany Note or a promissory note which shall have been pledged pursuant to the Collateral Agreements to the extent required by the Borrower or Collateral and Guarantee Requirement and (C) any Subsidiary that is a Loan Party of such Indebtedness of owing by any Subsidiary that is not a Loan Party to any Loan Party shall be subject to incurred in compliance with Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations6.04;
(Ad) Guarantees incurred in compliance with Section 6.04;
(e) Permitted First Priority Refinancing Indebtedness, Permitted Second Priority Refinancing Indebtedness, Permitted Unsecured Refinancing Indebtedness and any Refinancing Indebtedness in respect of any of the foregoing;
(f) (i) Indebtedness of the Borrower Company or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations Obligations, purchase money Indebtedness and any Indebtedness assumed by the Borrower Company or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, provided that such Indebtedness is incurred prior to or within 90 270 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, repair, lease or improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), applicable asset; provided that the aggregate principal amount of Indebtedness permitted by this clause (viif) shall not exceed $5,000,000 at any time outstanding;
(viii) outstanding the greater of (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations $15,000,000 and (B) other unsecured 5% of Consolidated EBITDA computed on a Pro Forma Basis for the most recently ended Test Period as of the time such Indebtedness is incurred and (ii) Refinancing Indebtedness in respect of Indebtedness incurred or assumed pursuant to clause (i) above;
(g) (i) Indebtedness of any Person that becomes a Restricted Subsidiary (or of any Person not previously a Restricted Subsidiary that is merged or consolidated with or into a Subsidiary in a transaction permitted hereunder, including the Borrower re-designation of an Unrestricted Subsidiary as a Restricted Subsidiary) after the Closing Date, or Indebtedness of any Person that is assumed by any Subsidiary in connection with an acquisition of assets by such Subsidiary in a Permitted Acquisition; provided that such Indebtedness exists at the time such Person becomes a Restricted Subsidiary (or is so merged or consolidated) or such assets are acquired and is not created in contemplation of or in connection with such Person becoming, as the case may be, a Subsidiary or Restricted Subsidiary (or such merger or consolidation) or such assets being acquired and (ii) Refinancing Indebtedness in respect of Indebtedness assumed pursuant to clause (i) above; provided further that the aggregate principal amount of Indebtedness permitted by this clause (g) shall not exceed at any time outstanding the greater of (A) $25,000,000 and (B) 8% of Consolidated EBITDA computed on a Pro Forma Basis for the most recently ended Test Period as of the time such Indebtedness is incurred;
(h) secured or unsecured loans, bonds or notes so long as such Indebtedness shall not exceed the sum of (i) an amount equal to the Base Incremental Amount in effect on such date, (ii) an amount equal to the Voluntary Prepayment Amount and (iii) an additional amount that would not cause the Total Net Leverage Ratio, calculated on a Pro Forma Basis as of the date of incurrence thereof (excluding from such pro forma calculation the Net Proceeds of such Indebtedness and assuming the full amount of any undrawn commitment is drawn), to exceed 2.50 to 1.00 (any Indebtedness incurred in reliance on this clause (h), “Incremental Equivalent Debt”); provided, that (A) the Company shall be deemed to have used amounts under clause (iii) above prior to utilization of amounts under clause (i) or (ii) above and (B) the proceeds from any such incurrence under such clauses may be utilized in a single transaction by first calculating the incurrence under clause (iii) above and then calculating the incurrence under clauses (i) and/or (ii) above); provided, further, that any such Incremental Equivalent Debt (1) to the extent secured (including, for the avoidance of doubt, on and after the Collateral Release Event), (x) shall not be secured by any Lien on any asset of the Company or any Subsidiary incurred that does not also secure the Obligations at least on an equal and ratable basis and (y) shall be subject to an Intercreditor Agreement, (2) shall not be Guaranteed by any Subsidiary other than the Loan Parties, (3) shall mature no earlier than the Maturity Date of the Initial Term Loans, (4) shall have a weighted average life to maturity not shorter than the Initial Term Loans, (5) in the case of Incremental Equivalent Debt in the form of bonds or notes, does not provide for any amortization, mandatory prepayment, redemption or repurchase (other than upon a change of control or fundamental change and customary acceleration rights after an event of default and, for the avoidance of doubt, rights to convert or exchange in the case of convertible or exchangeable Indebtedness) prior to the Fifth Amendment Effective Maturity Date of the Initial Term Loans, (6) contains covenants, events of default, guarantees and other terms that are customary for similar Indebtedness in light of then-prevailing market conditions or, when taken as a whole (other than interest rates, rate floors, fees and optional prepayment or redemption terms), are not more favorable to the lenders or investors providing such Incremental Equivalent Debt, as the case may be, than those set forth in the Loan Documents are with respect to the Lenders (other than covenants or other provisions applicable only to periods after the Maturity Date of the Initial Term Loans) and (7) may not be secured, to the extent incurred on or after the Collateral Release Event, unless the Obligations are equally and ratably secured and such secured Incremental Equivalent Debt is subject to an aggregate principal amount not exceeding $5,000,000 at any time outstandingIntercreditor Agreement;
(ixi) Indebtedness incurred in the ordinary course of business and owed to in respect of Cash Management Services or any Person overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any automated clearinghouse transfers of funds;
(including obligations j) Indebtedness in respect of letters of credit credit, bank guarantees and similar instruments issued for the benefit account of such Personthe Company or any Subsidiary in the ordinary course of business supporting obligations under (i) providing workers’ compensation, health, disability or other employee benefits or propertybenefits, casualty or liability insurance, pursuant to reimbursement unemployment insurance and other social security laws and local state and federal payroll taxes, (ii) obligations in connection with self-insurance arrangements in the ordinary course of business and (iii) bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance and reclamation bonds and obligations of a like nature;
(k) Indebtedness consisting of client advances or indemnification obligations to such Person, in each case incurred deposits received in the ordinary course of business;
(xl) Indebtedness consisting of short-term credit facilities, including, among others, bank guarantees and letters of credit, collectively in an aggregate at any time outstanding not to exceed the greater of (A) $15,000,000 and (B) 5% of Consolidated EBITDA computed on a Pro Forma Basis for the most recently ended Test Period as of the time such credit facility is entered into;
(m) Indebtedness of the Borrower Company or any Subsidiary in respect the form of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations purchase price adjustments (other than including in respect of other Indebtednessworking capital), earnouts, seller notes deferred compensation, indemnification or other arrangements representing acquisition consideration or deferred payments of a similar nature incurred in each case connection with any Permitted Acquisition or other Investments permitted under Section 6.04 or Dispositions permitted under Section 6.05;
(n) Indebtedness of Subsidiaries that are not Loan Parties; provided that no Subsidiary that is not a Loan Party shall incur any Indebtedness under this Section 6.01(n) if, at the time of, and after giving effect to, the incurrence of such Indebtedness (and any substantially simultaneous use of the Specified Permitted Amount) and the use of proceeds thereof, the Specified Permitted Amount would be less than zero;
(o) Indebtedness relating to (i) premium financing arrangements for insurance plans (including property and health insurance plans) and health and welfare benefit plans (including health and workers compensation insurance, employment practices liability insurance and directors and officers insurance), if incurred in the ordinary course of business or (ii) take-or-pay obligations contained in supply agreements, in the ordinary course of business;
(xip) additional Indebtedness in an aggregate amount at any time outstanding not in excess of the greater of (A) $50,000,000 and (B) 17% of Consolidated EBITDA computed on a Pro Forma Basis for the most recently ended Test Period as of the time such Indebtedness is incurred;
(q) Indebtedness in respect of Swap Hedging Agreements permitted by under Section 10.6.6.07;
(xiir) Capital Lease Obligations Indebtedness supported by a Letter of Credit, in a principal amount not to exceed the face amount of such Letter of Credit;
(s) Indebtedness representing deferred compensation or stock-based compensation owed to employees of the Borrower Company and its Subsidiaries incurred in the ordinary course of business or consistent with past practice;
(t) to the extent constituting Indebtedness, Guarantees in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Company and its Subsidiaries;
(u) all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described above;
(v) Indebtedness of the Company or any Subsidiary incurred pursuant to Permitted Receivables Facilities; provided that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement Attributable Receivables Indebtedness thereunder shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the an aggregate amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding;
(w) secured Indebtedness (in addition to any secured Indebtedness described above) incurred to finance ESPCs; provided that (i) the aggregate outstanding principal amount of all Indebtedness permitted solely by this clause (w) shall not at any time exceed $50,000,000; and (ii) at the time of the incurrence, assumption or creation of any such Preferred Equity Interests issued Indebtedness, no Default shall have occurred and be continuing or would result therefrom;
(x) loans and advances made by any Captive Insurance Company to the Borrower Company or any Subsidiary pursuant to Holdings for arrangements consistent with those in effect on the Closing Date; and
(y) other unsecured Indebtedness; provided that (i) the aggregate outstanding principal amount of all Indebtedness permitted solely by this clause (y) shall not at any time exceed $500,000,000, (ii) at the time of the incurrence, assumption or creation of any such Indebtedness, (A) no Default shall have occurred and be continuing or would result therefrom, and (B) the Company and its Subsidiaries shall be in Pro Forma Compliance with the then-applicable financial covenant levels set forth in Section 6.13, (iii) such Indebtedness shall not include any financial covenants that are more restrictive in any respect on the Loan Parties than the financial covenants in this Agreement, (iv) such Indebtedness is not subject to any amortization payments or any mandatory prepayments or sinking fund payments (other than in connection with a change of control, asset sale or event of loss and customary acceleration rights after an event of default) in each case, prior to the date that is six (6) months after the Latest Maturity Date, and (v) such Indebtedness shall not mature at any time on or prior to the date that is six (6) months after the Latest Maturity Date. For purposes of matching Preferred Equity Interests issued by Holdings shall determining compliance with this Section 6.01, (i) in the event that an item of Indebtedness (or any portion thereof) meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (v) above, the Company may, in its sole discretion, at the time of incurrence, divide, classify or reclassify, or at any later time divide, classify or reclassify, such item of Indebtedness (or any portion thereof) and will only be excluded from required to include the calculation amount and type of such amountIndebtedness in one or more of the above clauses; provided that all Indebtedness outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) above.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Combined Loan Documents;
(ii) (1) Indebtedness existing on the Effective Date and set forth Senior Notes in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a aggregate principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus not to exceed at any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replacedone time U.S.$1,500,000,000;
(iii) Additional Mortgage Indebtedness of Borrower to any Restricted Subsidiary and extensions, renewals and replacements thereof, in each case incurred, extended, renewed of any Restricted Subsidiary to Borrower or replaced prior any other Restricted Subsidiary that is subordinated to the Fifth Amendment Effective Date if, on Combined Obligations (other than Hedging Obligations) in form and substance reasonably satisfactory to the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit AgreementGlobal Administrative Agent;
(iv) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary, provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) in each case existing as of the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(viidate hereof and set forth in Schedule 7.1(a)(iv)(A)), ; and (B) other Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of Borrower or any Subsidiary other Subsidiary; provided that is a with respect to clause (B), the Guarantees by Borrower or any other Loan Party of Indebtedness of any Unrestricted Subsidiary that is shall not a Loan Party exceed at any time U.S.$25,000,000 in the aggregate and shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations7.4;
(A) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(viiv) Indebtedness of any Person that becomes a Restricted Subsidiary after October 6, 2006 but prior to the Fifth Amendment Global Effective Date, ; provided that (A) such Indebtedness exists at the time such Person becomes a Restricted Subsidiary and was is not created in contemplation of or in connection with such Person becoming a Subsidiary, Restricted Subsidiary and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that B) the aggregate principal amount of Indebtedness permitted by this clause (viiv) and clause (ix) shall not exceed $5,000,000 U.S.$100,000,000 at any time outstanding;
(vi) Indebtedness of Borrower and its Restricted Subsidiaries secured by Liens permitted by Section 7.2(e) up to but not exceeding U.S.$25,000,000 at any one time outstanding;
(vii) Capital Lease Obligations of Borrower and its Restricted Subsidiaries secured by Liens permitted by Section 7.2(i) hereof up to but not exceeding U.S.$25,000,000 at any one time outstanding;
(viii) Indebtedness relating to the Lantern Sale and Leaseback not to exceed U.S.$70,000,000 at any time outstanding; and
(Aix) a Guarantee by the Borrower of other Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent Borrower and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date its Restricted Subsidiaries in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
(ix) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(x) 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 other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) U.S.$100,000,000 at any time outstanding.
(cb) Neither Holdings nor the Borrower willwill not, nor and will they not permit any Restricted Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Interest.
(c) Borrower (or, in the case will not permit any of the Trust Preferred SecuritiesUnrestricted Subsidiaries to create, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests incur or suffer to exist any Indebtedness except:
(i) Non-Recourse Debt in an aggregate principal amount not exceeding $150,000,000 to exceed U.S.$500,000,000 at any time outstanding; , provided that any such Preferred Equity Interests issued by during the period the Borrower continues to Holdings for purposes of matching Preferred Equity Interests issued by Holdings own, directly or indirectly, Forest Alaska Holding LLC, a Delaware limited liability company, and Forest Alaska Operating LLC, a Delaware limited liability company, such limit shall be excluded from the calculation increased to U.S.$750,000,000; and
(ii) letter of credit or bank guarantee reimbursement obligations of such amountUnrestricted Subsidiary in an amount not to exceed U.S.$25,000,000 in the aggregate at any one time outstanding, provided that stated principal amount of all such reimbursement obligations so Guaranteed shall be considered Investments and be subject to the aggregate limitation on Investments in Unrestricted Subsidiaries imposed under Section 7.4(h).
Appears in 1 contract
Samples: Credit Agreement (Forest Oil Corp)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1) Indebtedness existing on the Effective Date date hereof and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a)6.01, and (3) extensions, renewals and replacements of any such Refinancing Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replacedthereof;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary, ; provided that (A) any such Indebtedness of a Loan Party to any Subsidiary that is not a Loan Party is subordinated to the Obligations on terms customary for intercompany subordinated Indebtedness that are reasonably satisfactory to the Borrower and the Administrative Agent and (B) Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent6.04;
(viv) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, ; provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations6.04;
(Av) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and Refinancing Indebtedness in respect of any such Indebtedness; provided that (A) such Indebtedness is incurred prior to or within 90 180 days after such acquisition or the completion of such construction or improvement, improvement and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (viv) shall not exceed $5,000,000 at any time outstandingoutstanding shall not, when taken together with the Attributable Debt in respect of all sale and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisitionleaseback transactions then outstanding under Section 6.06, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Dateexceed $50,000,000;
(viivi) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, date hereof in connection with any Permitted Acquisition; provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was is not created in contemplation of or in connection with such Person becoming a Subsidiary, Subsidiary and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that B) the aggregate principal amount of secured Indebtedness permitted by this clause (viivi) shall not exceed $5,000,000 20,000,000 at any time outstanding;
(vii) Indebtedness owed in respect of any overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any automated clearing-house transfers of funds;
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of Loan Parties if, when incurred, immediately after giving effect to such Indebtedness (A) no Default shall have occurred and be continuing, (B) the Borrower shall be in compliance with the financial covenants set forth in Sections 6.12 and 6.13 after giving effect to such Indebtedness on a pro forma basis computed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) and (C) the maturity of such Indebtedness shall not be earlier, and the Weighted Average Life to Maturity of such Indebtedness shall not be shorter, than that of any Subsidiary incurred prior to of the Fifth Amendment Effective Date Term Loans then existing;
(ix) other unsecured or secured Indebtedness in an aggregate principal amount not exceeding $5,000,000 20,000,000 at any time outstanding;
(ix) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;; and
(x) 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 other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Earn-Out Obligations, or Guarantees and/or indemnities (other than in respect of payment of principal or interest) thereof, by the Borrower or any Subsidiary in respect of capital contributionsLoan Party, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extensiondeferred compensation arrangements, renewal and (C) any non-compete or replacement of Indebtedness (the “Original Indebtedness”) described consulting obligations, in clause (A) so long as such Borrower each case, incurred in connection with Permitted Acquisitions or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal other acquisitions or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtednessinvestments consummated in accordance with this Agreement.
(b) Holdings The Borrower will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, that is not a Loan Party to issue any preferred stock or permit to remain outstanding any Preferred other preferred Equity Interests except in the case of Holdings unless a Loan Party has, or the Borrower (orwill concurrently be issued, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred preferred stock or other preferred Equity Interests that are Qualified pari passu with the preferred stock or preferred Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests to be issued by the Borrower such Subsidiary with ownership interests in such Subsidiary in direct proportion to Holdings for purposes such Loan Party’s ownership of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amountcapital stock.
Appears in 1 contract
Samples: Credit Agreement (PharMerica CORP)
Indebtedness; Certain Equity Securities. (a) The None of the Borrower will not, and will not permit or any Subsidiary to, will create, incur, assume or permit to exist any Indebtedness, except:
(ia) Indebtedness created under the Loan Documents;
(ii) (1b) Indebtedness existing on the Effective Date and set forth on Schedule 6.01 and Refinancing Indebtedness in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one respect of any of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replacedforegoing;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(ivc) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary, ; provided that (A) that any such Indebtedness owing by any Loan Party shall be unsecured and, any such Indebtedness in excess of $10,000,000 in the aggregate, shall be subordinated in right of payment to the Loan Document Obligations on terms customary for intercompany subordinated Indebtedness or otherwise reasonably satisfactory to the Administrative Agent, (B) any such Indebtedness owing to any Loan Party shall be evidenced by a promissory note which shall have been pledged pursuant to the Collateral Agreement to the extent required by the Collateral and Guarantee Requirement and (C) any such Indebtedness owing by any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to incurred in compliance with Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent6.04(d);
(vd) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this incurred in compliance with Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations6.04;
(Ai) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations Obligations, purchase money Indebtedness and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, ; provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 10,000,000 at any time outstanding, and any (ii) Refinancing Indebtedness permitted by this in respect of Indebtedness incurred or assumed pursuant to clause (vii) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Dateabove;
(viii) Indebtedness of any Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Subsidiary in a transaction permitted hereunder) after October 6, 2006 but prior to the Fifth Amendment Effective Date, or Indebtedness of any Person that is assumed by any Subsidiary in connection with an acquisition of assets by such Subsidiary in a Permitted Acquisition; provided that such Indebtedness exists at the time such Person becomes a Subsidiary (or is so merged or consolidated) or such assets are acquired and was is not created in contemplation of or in connection with such Person becoming a SubsidiarySubsidiary (or such merger or consolidation) or such assets being acquired, and extensions, renewals and replacements (ii) Refinancing Indebtedness in respect of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced assumed pursuant to clause (plus any accrued but unpaid interest and redemption premium thereon), i) above; provided further that the aggregate principal amount of Indebtedness permitted by this clause (viif) shall not exceed $5,000,000 10,000,000 at any time outstanding;
(viiig) (A) a Guarantee by the Borrower of Indebtedness of Holdings any Borrower or Subsidiary not otherwise permitted under Section 10.1.(b)(iii)this Agreement so long as, at the time of incurrence of such Indebtedness, the Leverage Ratio, calculated on a Pro Forma Basis as of the date of incurrence thereof, is not in excess of 3.00 to 1.00; provided that (i) immediately prior to and immediately after giving effect to the Guarantee permitted incurrence of any such Indebtedness under this clause (viii)(Ag), no Event of Default shall have occurred and be continuing and (ii) no Indebtedness of any Subsidiary that is not a Loan Party shall be subordinated permitted pursuant to this Section 6.01(g) if, at the Obligations time of the incurrence of, and after giving effect to such Indebtedness (and any substantially simultaneous use of the same extent Permitted Amount), the Permitted Amount would be less than zero;
(h) Indebtedness incurred and on owed in respect of any overdrafts or similar protections and related liabilities arising from treasury, depository and cash management services and related obligations or in connection with any automated clearing-house transfers of funds;
(i) Indebtedness in respect of letters of credit, bank guarantees and similar instruments issued for the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness account of the Borrower or any Subsidiary incurred prior to in the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
ordinary course of business supporting obligations under (ixi) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or propertybenefits, casualty or liability insurance, pursuant unemployment insurance and other social security laws and local state and federal payroll taxes, (ii) obligations in connection with self-insurance arrangements in the ordinary course of business and (iii) bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance and reclamation bonds and obligations of a like nature, including, without limitation, performance guarantees;
(j) Indebtedness consisting of client advances or deposits received in the ordinary course of business;
(k) Indebtedness of the Borrower or any Subsidiary in the form of purchase price adjustments (including in respect of working capital), earnouts, seller notes, deferred compensation, deferred purchase price, indemnification or other arrangements representing acquisition consideration or deferred payments of a similar nature incurred in connection with any Permitted Acquisition (or any other acquisition permitted hereunder) or other Investments permitted under Section 6.04 or Dispositions permitted under Section 6.05;
(l) Indebtedness of Subsidiaries that are not Loan Parties; provided that no Subsidiary that is not a Loan Party shall incur any Indebtedness under this Section 6.01(l) if, at the time of, and after giving effect to, the incurrence of such Indebtedness (and any substantially simultaneous use of the Permitted Amount) and the use of proceeds thereof, the Permitted Amount would be less than zero;
(m) Indebtedness relating to reimbursement premium financing arrangements for property and casualty insurance plans and health and welfare benefit plans (including health and workers compensation insurance, employment practices liability insurance and directors and officers insurance), if incurred in the ordinary course of business;
(n) Indebtedness owing under any Hedging Agreements and owing under any Cash Management Agreements;
(o) Indebtedness under performance bonds, surety bonds, release, appeal and similar bonds, statutory obligations or indemnification obligations with respect to such Personworkers’ compensation claims, in each case incurred in the ordinary course of business;
(x) Indebtedness of the Borrower or any Subsidiary , and reimbursement obligations in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations (other than in respect of other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations any of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreementforegoing; and
(xivp) Guarantees by other Indebtedness of Loan Parties not otherwise described above in an aggregate amount at any time outstanding not in excess of $10,000,000; and
(q) intercompany loans or other Indebtedness of BidCo made in order to consummate the Target Acquisition and owed to the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiaryits Subsidiaries. Notwithstanding anything contrary set forth above, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist if any Indebtedness except (i) Indebtedness created under the Loan Documentsis denominated in a foreign currency, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness no fluctuation in respect currency values shall result in a breach of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstandingthis Section 6.01.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amount.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) Hedging Agreements allowed pursuant to Section 6.06;
(1iii) Indebtedness existing on the Effective Date date hereof and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), 6.01 and (3) extensions, renewals renewals, modifications and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall do not be Indebtedness of an obligor that was not an obligor with respect to increase the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a outstanding principal amount thereof or increase, above a rate deemed commercially reasonable by the Borrower, the interest rate payable thereon from that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replaced;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced existing immediately prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreementrefinancing;
(iv) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other another Subsidiary, ; provided (A) that such Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent6.04;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, Borrower; provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) such Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations6.04;
(Avi) Indebtedness of the Borrower or any Subsidiary incurred to finance solely for the purpose of financing the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof; provided that (A) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, improvement and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as 95% of the Fifth Amendment Effective Dateamount allowed for Capital Expenditures pursuant to Section 6.19;
(vii) Indebtedness trade payables in the ordinary course of any Person that becomes a Subsidiary after October 6business, 2006 but prior endorsements for collection or deposit in the ordinary course of business, surplus and retained earnings, lease obligations (other than pursuant to the Fifth Amendment Effective DateCapitalized Leases), provided that such Indebtedness exists at the time such Person becomes a Subsidiary reserves for deferred income taxes and was not created in contemplation of or in connection with such Person becoming a Subsidiaryinvestment credits, other deferred credits and reserves, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 at any time outstanding;deferred compensation obligations; and
(viii) additional Indebtedness not to exceed $100,000 outstanding at any time.
(Ab) a Guarantee by the The Borrower will not, and will not permit any Subsidiary to, issue any preferred stock or be or become liable in respect of Indebtedness any obligation (contingent or otherwise) to purchase, redeem, retire, acquire or make any other payment in respect of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness any shares of capital stock of the Borrower or any Subsidiary incurred prior or any option, warrant or other right to acquire any such shares of capital stock. Nothing in this paragraph shall prohibit the Borrower from granting stock options to officers, directors, employees and consultants of or to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
(ix) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability Borrower or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(x) Indebtedness from issuing common stock 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 other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6pursuant to such options.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amount.
Appears in 1 contract
Samples: Credit Agreement (Topps Co Inc)
Indebtedness; Certain Equity Securities. (a) The Borrower Loan Parties will not, and will not permit any Subsidiary of their Subsidiaries to, directly or indirectly, create, incur, assume or permit to exist (including by way of Guarantee) any Indebtedness, except:
(i) Indebtedness created incurred and outstanding under the Loan Documents;
(ii) (1A) Indebtedness existing on of Holdings incurred and outstanding under the Effective Date Senior Notes in an aggregate principal amount not to exceed $130.0 million at any time and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall any Permitted Refinancing thereof; provided that in the case of clause (B) only, (x) such Indebtedness matures at least one year after the Term Loan Maturity Date (and does not have mandatory offers to purchase, repayments or sinking fund provisions less favorable to the Lenders than the corresponding provisions of the Senior Note Documents) and (y) after giving effect to the incurrence of such Indebtedness (and any other Indebtedness incurred since the last day of the immediately preceding Test Period) on a pro forma basis as if it were incurred on the first day of the immediately preceding Test Period, the Borrowers would be in a principal amount that exceeds compliance with the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replacedFinancial Covenants;
(iii) Additional Mortgage Indebtedness set forth on Schedule 6.01(a)(iii) and extensions, renewals and replacements any Permitted Refinancing thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary, provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject owed to Section 10.4. and (B) Indebtedness of the a Borrower to or any Subsidiary Loan Party; provided that such Indebtedness is represented by a note and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated pledged to the Obligations on terms reasonably satisfactory Administrative Agent pursuant to the AgentSecurity Documents;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the a Borrower or any Subsidiary that is a Loan Party of Indebtedness of a Borrower or any Subsidiary Loan Party, in each case, to the extent such Indebtedness would have been permitted to be incurred hereunder directly by such Loan Party, and if such Indebtedness is subordinated in right of payment to the Obligations under the Loan Documents, such Guarantee is as subordinated in right of payment to the Obligations on the same terms;
(vi) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided that such Indebtedness is not a extinguished within two Business Days of such Loan Party or such Subsidiary receiving notice thereof;
(vii) Indebtedness of any Loan Party in an aggregate principal amount outstanding at any time not in excess of $50.0 million; provided that, in each case, (x) no Default shall have occurred or be subject continuing or would result therefrom and (y) after giving effect to the incurrence of such Indebtedness on a pro forma basis, the Loan Parties would be in compliance with the Financial Covenants as of the most recent Test Period for which financial statements have been delivered pursuant to Section 10.4. 5.01 and any Permitted Refinancing in respect thereof;
(Cviii) Guarantees permitted under Indebtedness of ICTC to a Borrower or any Subsidiary Loan Party in an aggregate principal amount outstanding at any time not in excess of $15.0 million; provided that if any such Indebtedness described in this clause (vSection 6.01(a)(viii) shall be subordinated evidenced by a promissory note, such note shall be pledged pursuant to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the ObligationsCollateral Agreement;
(Aix) Indebtedness of the a Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased Weighted Average Life to Maturity thereof; provided that (A) such Indebtedness is incurred prior to or within 90 180 days after such acquisition or the completion of such construction or improvement, improvement and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (viix) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 25.0 million at any time outstanding;
(viiix) (A) a Guarantee by Indebtedness under Hedging Agreements entered into in the Borrower ordinary course of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent business and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstandingfor speculative purposes;
(ixxi) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Personof) any Person providing workers’ worker’s compensation, health, disability or other employee benefits or property, casualty or liability insuranceinsurance to a Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(xxii) Indebtedness of the a 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 and trade-related letters of other Indebtedness)credit, in each case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(xixiii) Indebtedness arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, in respect each case, incurred or assumed in connection with the disposition of Swap Agreements permitted any business, assets or a Subsidiary, other than Guarantees of Indebtedness incurred by Section 10.6.any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition;
(xiixiv) Capital Lease Obligations obligations arising from or representing deferred compensation to employees of the a Borrower or any Subsidiary that constitute or are deemed to be Indebtedness under GAAP and that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a)ordinary course of business;
(xiiixv) (A) Guarantees and/or indemnities (other than Indebtedness of a Person existing at the time such Person becomes a Subsidiary of a Borrower in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection compliance with investments or Indebtedness otherwise permitted under this Agreement; and
, but only if such Indebtedness could otherwise be incurred pursuant to clauses (i) to (xiv) Guarantees by the Borrower of this Section 6.01(a); provided that no Default shall have occurred and be continuing or any Subsidiary of: would result therefrom;
(Axvi) [Intentionally Omitted];
(xvii) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred Parties assumed in one or assumed by the Borrower or more Permitted Acquisitions and any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes Permitted Refinancing thereof in an aggregate principal amount not exceeding to exceed $150,000,000 (plus an over allotment of up to 15.0%) 25.0 million outstanding at any time outstanding.to the extent such Indebtedness was not incurred in connection with or in contemplation of such Permitted Acquisition; and
(cxviii) Neither Holdings nor Indebtedness of Holdings, the Borrower will, nor will they permit Net Cash Proceeds of which are used to permanently repay Loans or to finance Capital Expenditures or Investments by the Borrowers or any Subsidiary to, issue or permit to remain outstanding refinance any Preferred Equity Interests except in Indebtedness pursuant to a Permitted Refinancing thereof; provided that:
(A) after giving effect to any such incurrence of Indebtedness and the case use of Holdings proceeds therefrom (and any other Indebtedness incurred or assumed since the Borrower (or, in the case last day of the Trust Preferred Securities, MHG Capital Trust Iimmediately preceding Test Period), Preferred Equity Interests the Total Net Leverage Ratio would be less than or equal to 4.75:1.00;
(B) if any portion of the Indebtedness to be refinanced is Indebtedness of the type referred to in Section 6.01(a)(ii), such Indebtedness shall have a stated maturity that are Qualified Equity Interests in an aggregate principal amount is at least one year after the Term Loan Maturity Date (and, other than with respect to any Convertible Indebtedness, shall not exceeding $150,000,000 at have mandatory offers to purchase, repayments or sinking fund provisions less favorable to the Lenders than the corresponding provisions of the Senior Note Documents); and
(C) such Indebtedness shall be non-recourse to the Borrowers or any time outstandingSubsidiary; provided further that any such Preferred Equity Interests issued by notwithstanding clause (A) above Holdings may incur unsecured Indebtedness, on terms and conditions satisfactory to the Borrower Administrative Agent, incurred to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amount.finance a Permitted Acquisition so long as:
Appears in 1 contract
Samples: Credit Agreement (Consolidated Communications Holdings, Inc.)
Indebtedness; Certain Equity Securities. (a) The Borrower Company will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1) Indebtedness existing on the Effective Date and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replaced6.01;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower Company to any Subsidiary and of any Subsidiary to the Borrower Company or any other Subsidiary, ; provided (A) that Indebtedness of any Subsidiary that is not a Loan Party owing to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent6.04;
(viv) Guarantees by the Borrower Company of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower Company or any other Subsidiary, ; provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations6.04;
(Av) Indebtedness of the Borrower Company or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations (other than in respect of Eligible Leaseholds) and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (except to the extent of any reasonable premiums, fees and expenses incurred in connection with any such extensions, renewals and replacements) or result in an earlier maturity date or decreased weighted average life thereof; provided that (A) before and after giving effect to the incurrence of such Indebtedness, no Default or Event of Default shall have occurred and be continuing, (B) such Indebtedness is incurred prior to or within 90 180 days after such acquisition or the completion of such construction or improvementimprovement and (C) the aggregate principal amount of Indebtedness incurred on or after the Effective Date and permitted by clauses (v), (vi), (vii) and (viii) below shall not exceed $15,000,000;
(vi) Indebtedness of the Company or any Subsidiary relating to purchase money security interests (as defined in the New York Uniform Commercial Code, as amended); provided that (A) before and after giving effect to the incurrence of such Indebtedness, no Default or Event of Default shall have occurred and be continuing, and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this be subject to the limitation set forth in the proviso to clause (viv) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Dateabove;
(vii) Without duplication of Indebtedness described in clause (v) hereof, Indebtedness of the Company or any Person that becomes a Subsidiary incurred to finance the acquisition by the Company or any Subsidiary after October 6, 2006 the Effective Date of real property and improvements thereto (but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of inventory or in connection with such Person becoming a Subsidiaryother personal property located therein), and extensions, renewals and replacements of any such Indebtedness so long as that do not increase the outstanding principal amount thereof (except to the extent of any reasonable premiums, fees and expenses incurred in connection with any such extensions, renewals and replacements does not exceed replacements) or result in an earlier maturity date or decreased weighted average life thereof; provided that (A) before and after giving effect to the principal incurrence of such Indebtedness, no Default or Event of Default shall have occurred and be continuing, (B) the terms of such Indebtedness are commercially reasonable, (C) the secured recourse to the Company or any Subsidiary of such Indebtedness shall be limited to the value of the Indebtedness being extendedreal property and improvements financed by such Indebtedness, renewed or replaced Indebtedness, (plus D) no proceeds of any accrued but unpaid interest Loan may be used to pay for any portion of the acquisition of any such real property and redemption premium thereon), provided that improvements and (E) the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 at any time outstandingbe subject to the limitation set forth in the proviso to clause (v) above;
(viii) (A) a Guarantee Guarantees by the Borrower Company or any of its Subsidiaries of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided third parties given in connection with the Guarantee permitted under this acquisition or improvement of real property for use in the business of the Company and its Subsidiaries shall be subject to the limitation set forth in the proviso to clause (viii)(Av) shall above;
(ix) software licenses required to be subordinated to the Obligations to the same extent and reflected as indebtedness on the same terms Company’s consolidated balance sheet in an aggregate amount not exceeding $10,000,000;
(x) without duplication of any other Indebtedness permitted hereunder, liabilities for leases of real property characterized as the Indebtedness so Guaranteed is subordinated to the Obligations and for purposes of GAAP;
(Bxi) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 10,000,000 at any time outstanding;
(ixxii) the Junior DIP Facility;
(xiii) Indebtedness owed arising pursuant to agreements in connection with any Dispositions of any business, assets or Equity Interests of any Subsidiary permitted under Section 6.05 hereof consisting of indemnification, adjustment of purchase price or similar obligations, or guarantees or letters of credit, bankers’ acceptances, accommodation guarantees, surety bonds or performance bonds securing any obligations of the Company or any of its Subsidiaries pursuant to such agreements, in any case incurred in connection with such permitted Disposition (other than guarantees of Indebtedness incurred by any Person (including obligations in respect acquiring all or any portion of letters such business, assets or capital stock of credit such Subsidiary for the benefit purpose of financing such Personacquisition);
(xiv) providing workers’ compensation, health, disability Indebtedness arising from the honoring by a bank or other employee benefits financial institution of a check, draft or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred similar instrument drawn against insufficient funds in the ordinary course of business;; provided, however, that such Indebtedness is extinguished within ten (10) Business Days of its incurrence; and
(xxv) Indebtedness arising in connection with endorsements 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 other Indebtedness), in each case provided instruments for deposit in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings The Company will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower willnot, nor will they the Company permit any Subsidiary to, issue any preferred stock or permit to remain outstanding any Preferred other preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amountInterests.
Appears in 1 contract
Samples: Superpriority Debtor in Possession Credit Agreement (Great Atlantic & Pacific Tea Co Inc)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan DocumentsDocuments and the Letter of Credit applications;
(ii) Subordinated Debt of the Borrower; provided that immediately prior to and after giving pro forma effect to the incurrence of such Subordinated Debt as if it had been incurred on the first day of the most recent fiscal quarter for which financial statements shall have been delivered pursuant to Section 5.01 (or, prior to the delivery of any such financial statements, as of February 1, 2005) or at the beginning of the period of four fiscal quarters ended on such last day, as applicable, no Default shall have occurred and be continuing;
(iii) Indebtedness existing on the Effective Date date hereof and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replaced;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement6.01;
(iv) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary, provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, ; provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations6.04;
(Avi) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations, Synthetic Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, ; provided that such Indebtedness is incurred prior to or within 90 180 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, date hereof; provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was is not created in contemplation of or in connection with such Person becoming a Subsidiary;
(viii) guarantees by the Borrower or any of its Subsidiaries of the obligations of their suppliers, customers, franchisees and extensionslicensees, renewals to the extent incurred in the ordinary course of business and replacements consistent with past practices;
(ix) Indebtedness owing to current or former employees, executives or directors of the Borrower or any of its Subsidiaries incurred in connection with the redemption or repurchase of equity issued to such Indebtedness so long as Persons (including any promissory notes issued by the Borrower or any of its Subsidiaries to repurchase equity of employees, executives or directors of the Borrower or any of its Subsidiaries) incurred in the ordinary course of business and in an aggregate principal amount at any time outstanding not exceeding $5,000,000;
(x) other Indebtedness of such extensions, renewals and replacements does Subsidiaries that are not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), Subsidiary Loan Parties; provided that the aggregate outstanding principal amount of Indebtedness permitted by this clause of all Specified IP Subsidiaries and all Disregarded Foreign Subsidiaries (viiother than Loan Parties) directly or indirectly owning Equity Interests in Specified IP Subsidiaries (excluding, in each case, Indebtedness owing to any Loan Party) shall not exceed $5,000,000 20,000,000 at any time outstanding;
(viiixi) (A) a Guarantee by the Borrower any Permitted Refinancing Indebtedness in respect of Indebtedness referred to in any of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause clauses (viii)(Aa)(iii) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (Bvii) above; and
(xii) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date Loan Party in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
(ix) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(x) 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 other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) 20,000,000 at any time outstanding.
(b) Notwithstanding anything to the contrary in paragraph (a) of this Section, the Borrower will not, and will not permit any Subsidiary to, incur any Priority Indebtedness unless, immediately after such incurrence, the aggregate principal amount then outstanding of all Priority Indebtedness of the Borrower and the Subsidiaries shall not exceed the greater of (i) $50,000,000 and (ii) 40% of the Consolidated EBITDA for the most recently ended period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 5.01 (or, prior to the delivery of any such financial statements, the period of four consecutive fiscal quarters ended April 30, 2005), after giving pro forma effect to any Permitted Acquisitions or divestitures of Subsidiaries, business units or material assets as if they had occurred on the first day of such period; provided that the Borrower and the Subsidiaries may incur Priority Indebtedness consisting of Permitted Refinancing Indebtedness in respect of any Priority Indebtedness incurred or permitted to exist in compliance with this Section 6.01.
(c) Neither Holdings nor the The Borrower willwill not, nor and will they not permit any Subsidiary to, issue or permit to remain outstanding any Preferred preferred Equity Interests, except that the Borrower may issue such Equity Interests except in so long as the case of Holdings holders thereof shall have no rights with respect to the redemption or repurchase by the Borrower (or, in the case or any Subsidiary of the Trust Preferred Securities, MHG Capital Trust I), Preferred such Equity Interests that are Qualified Equity Interests could result in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by holders being treated as creditors of the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of or such amountSubsidiary.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower Company will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1) Indebtedness existing on the Effective Date date hereof and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), 6.01 and (3) extensions, renewals and replacements of any such Indebtedness described that do not increase the outstanding principal amount thereof (except to the extent of any reasonable premiums, fees and expenses incurred in clause (1connection with any such extensions, renewals and replacements) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be result in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter decreased weighted average life than the Indebtedness being extended, renewed or replacedthereof;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower Company to any Subsidiary and of any Subsidiary to the Borrower Company or any other Subsidiary, ; provided (A) that Indebtedness of any Subsidiary that is not a Loan Party owing to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent6.04;
(viv) Guarantees by the Borrower Company of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower Company or any other Subsidiary, ; provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations6.04;
(Av) Indebtedness of the Borrower Company or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations (other than in respect of leased real property) and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (except to the extent of any reasonable premiums, fees and expenses incurred in connection with any such extensions, renewals and replacements) or result in an earlier maturity date or decreased weighted average life thereof; provided that (A) before and after giving effect to the incurrence of such Indebtedness, no Default or Event of Default shall have occurred and be continuing, (B) such Indebtedness is incurred prior to or within 90 180 days after such acquisition or the completion of such construction or improvement, improvement and (BC) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness incurred on or after the Effective Date and permitted by this clause (viv) and clause (vii) below, plus the aggregate book value of all assets sold after the Effective Date pursuant to sale and leaseback transactions permitted by clause (b) of Section 6.06 shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause 300,000,000;
(vi) that is Without duplication of Indebtedness described in clause (v) hereof, Indebtedness of the Company or any Subsidiary incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned acquisition by the Borrower Company or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 the Effective Date of real property and improvements thereto (but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of inventory or in connection with such Person becoming a Subsidiaryother personal property located therein), and extensions, renewals and replacements of any such Indebtedness so long as that do not increase the outstanding principal amount thereof (except to the extent of any reasonable premiums, fees and expenses incurred in connection with any such extensions, renewals and replacements does not exceed replacements) or result in an earlier maturity date or decreased weighted average life thereof; provided that (A) before and after giving effect to the principal incurrence of such Indebtedness, no Default or Event of Default shall have occurred and be continuing,(B) the terms of such Indebtedness are commercially reasonable and (C) the secured recourse to the Company or any Subsidiary of such Indebtedness shall be limited to the value of the real property and improvements financed by such Indebtedness;
(vii) Indebtedness being extendedof the Company or any Subsidiary relating to purchase money security interests (as defined in the New York Uniform Commercial Code, renewed as amended); provided that, (A) before and after giving effect to the incurrence of such Indebtedness, no Default or replaced Event of Default shall have occurred and be continuing, and (plus any accrued but unpaid interest and redemption premium thereon), provided that B) the aggregate principal amount of Indebtedness permitted by this clause (vii) shall be subject to the limitation set forth in the proviso to clause (v) above.
(viii) Guarantees by the Company or any of its Subsidiaries of Indebtedness of third parties given in connection with the acquisition or improvement of real property for use in the business of the Company and its Subsidiaries not exceed exceeding $5,000,000 10,000,000 at any one time outstanding;
(viiiix) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall software licenses required to be subordinated to the Obligations to the same extent and reflected as indebtedness on the same terms Company's consolidated balance sheet in an aggregate amount not exceeding $10,000,000;
(x) without duplication of any other Indebtedness permitted hereunder, liabilities for leases of real property characterized as the Indebtedness so Guaranteed is subordinated to the Obligations and for purposes of GAAP;
(Bxi) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 50,000,000 at any time outstanding;
(ixxii) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(x) Indebtedness on account of the Borrower or any Subsidiary Series A Warrants issued to Yucaipa Corporate Initiatives Fund I, L.P., Yucaipa American Alliance (Parallel) Fund I, L.P. and Yucaipa American Alliance Fund I, L.P. in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations (other than in respect of other Indebtedness), in each case provided in connection with the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations Transactions to the extent that GAAP requires such Warrants to be included as a liability on the Consolidated balance sheet of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date Company and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a)Subsidiaries;
(xiii) (AIndebtedness of the Borrowers in an amount not to exceed $32,700,000 to Blue Ridge Investments, LLC which Indebtedness shall be secured pursuant to Section 6.02(i) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreementhereof; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium Borrowers on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect account of the Convertible Notes Notes, in an aggregate principal amount not exceeding to exceed $150,000,000 (420,000,000, plus an over allotment of up any additional amounts recorded in accordance with GAAP related to 15.0%) the convertible bond hedge and warrant transaction issued concurrently with the Convertible Notes, outstanding at any time outstanding(or such greater amount as the Administrative Agent, in its discretion, may agree).
(cb) Neither Holdings nor the Borrower willThe Company will not, nor will they the Company permit any Subsidiary to, issue any preferred stock or permit to remain outstanding any other preferred Equity Interests, other than Qualified Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amountStock.
Appears in 1 contract
Samples: Credit Agreement (Great Atlantic & Pacific Tea Co Inc)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit any Subsidiary of the Restricted Subsidiaries to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documentsconstituting Obligations;
(ii) (1A) Indebtedness evidenced by the ABL Loan Documents and (B) Indebtedness evidenced by the Supplemental Letter of Credit Loan Documents; provided that the aggregate principal or face amount of Indebtedness incurred under this clause (ii) shall not exceed $165,000,000 at any time outstanding;
(iii) Indebtedness existing on the Effective Closing Date and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), 6.01 and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replaced;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements Permitted Refinancing thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower or any other Restricted Subsidiary, ; provided that (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party owing to any Subsidiary that is not a Loan Party shall be subordinated subject to an Intercompany Subordination Agreement substantially in the Obligations on terms form set forth in Exhibit N (or such other form as may be reasonably satisfactory to the Administrative Agent) and (B) Indebtedness of any Subsidiary that is not a Loan Party owing to any Loan Party shall be subject to Section 6.04(c);
(v) Guarantees by the Borrower of Indebtedness of any Restricted Subsidiary and by any Restricted Subsidiary of Indebtedness of the Borrower or any other Restricted Subsidiary, ; provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations6.04;
(Avi) Indebtedness of the Borrower or any Restricted Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and Permitted Refinancings thereof and any Permitted Refinancings of such Refinanced Indebtedness; provided that (A) before and after giving effect to the incurrence of such Indebtedness, no Default (to the knowledge of any Loan Party) or Event of Default shall have occurred and be continuing, (B) such Indebtedness (other than any Permitted Refinancings thereof or Permitted Refinancings of any such Refinanced Indebtedness) is incurred prior to or within 90 270 days after such acquisition or the completion of such construction or improvement, improvement and (BC) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness incurred on or after the Closing Date and permitted by this clause (vi) of this Section 6.01 (together with any Indebtedness incurred under clauses (vii) and (xxvii) of this Section 6.01) at any time outstanding shall not exceed the greater of (x) $5,000,000 at any time outstanding, 40,000,000 and any Indebtedness permitted by this clause (viy) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion 1.95% of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;Total Assets
(vii) Indebtedness of the Borrower or any Person Restricted Subsidiary relating to purchase money security interests (as defined in the New York Uniform Commercial Code, as amended) and Permitted Refinancings thereof and any Permitted Refinancings of such Refinanced Indebtedness; provided that becomes a Subsidiary (A) before and after October 6, 2006 but prior giving effect to the Fifth Amendment Effective Date, provided that incurrence of such Indebtedness exists at the time no Default or Event of Default shall have occurred and be continuing, (B) such Person becomes a Subsidiary and was not created in contemplation of Indebtedness (other than any Permitted Refinancings thereof or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements Permitted Refinancings of any such Indebtedness so long as Refinanced Indebtedness) is incurred prior to or within 270 days after such acquisition or the principal amount completion of such extensions, renewals construction or improvement and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that C) the aggregate principal amount of Indebtedness incurred on or after the Closing Date and permitted by this clauses (vii) of this Section 6.01 (together with any Indebtedness incurred under clauses (vi) and (xxvii) of this Section 6.01) at any time outstanding shall not exceed the greater of (x) $40,000,000 and (y) 1.95% of Total Assets;
(viii) Indebtedness of the Borrower or any Restricted Subsidiary incurred to finance the acquisition by the Borrower or any Restricted Subsidiary after the Closing Date of real property and improvements thereto (but not inventory or other personal property located therein) and Permitted Refinancings thereof and any Permitted Refinancings of such Refinanced Indebtedness; provided that (A) before and after giving effect to the incurrence of such Indebtedness no Default (to the knowledge of any Loan Party) or Event of Default shall have occurred and be continuing, (B) the terms of such Indebtedness are commercially reasonable as determined by the Borrower, (C) the secured recourse to the Borrower or any Restricted Subsidiary of such Indebtedness shall be limited to the value of the real property and improvements financed by such Indebtedness and (D) the aggregate principal amount of Indebtedness incurred on or after the Closing Date and permitted by this clause (viiviii) of this Section 6.01 at any time outstanding shall not exceed the greater of (x) $5,000,000 25,000,000 and (y) 1.20% of Total Assets;
(ix) Investments permitted under Section 6.04(g) that constitute Indebtedness;
(x) without duplication of any other Indebtedness permitted hereunder, liabilities for Leases of real property characterized as Indebtedness for purposes of GAAP;
(xi) Indebtedness of the Borrower or any of its Restricted Subsidiaries consisting of take-or-pay obligations contained in supply arrangements, in each case incurred in the ordinary course of business;
(xii) Indebtedness arising pursuant to agreements in connection with any Dispositions of any business, assets or Equity Interests of any Restricted Subsidiary permitted under Section 6.05, (including for avoidance of doubt, the FPD Asset Sale and the UK Pension Settlement Agreement), any Permitted Acquisition or any other permitted Investment hereof consisting of indemnification, earn-out obligations, adjustment of purchase price or similar obligations, or guarantees or letters of credit, bankers’ acceptances, accommodation guarantees, surety bonds or performance bonds securing any obligations of the Borrower or any of its Restricted Subsidiaries pursuant to such agreements, in any case incurred in connection with such permitted Disposition, Permitted Acquisition or other permitted Investment (other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or capital stock of such Restricted Subsidiary for the purpose of financing such acquisition) and any Permitted Refinancing thereof and any Permitted Refinancings of any such Refinanced Indebtedness;
(xiii) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business (provided, however, that such Indebtedness is extinguished within ten (10) Business Days of the Borrower or the applicable Subsidiary becoming aware of such Indebtedness) or other cash management obligations and other Indebtedness in respect of netting services, automatic clearinghouse arrangements, credit card processing, overdraft protections and similar arrangements in the ordinary course of business;
(xiv) Indebtedness arising in connection with endorsements of instruments for deposit in the ordinary course of business;
(xv) Indebtedness consisting of the financing of insurance premiums in the ordinary course of business;
(xvi) Indebtedness in respect of Hedging Agreements designed to hedge against the Borrower’s or any Restricted Subsidiary’s exposure to interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(xvii) Indebtedness of any Restricted Subsidiary (A) assumed in connection with any Permitted Acquisition, provided that such Indebtedness is not incurred in contemplation of such Permitted Acquisition, and any Permitted Refinancing thereof, or (B) incurred to finance a Permitted Acquisition and any Permitted Refinancing thereof; provided that, in each case, such Indebtedness and all Indebtedness resulting from a Permitted Refinancing thereof (x) is unsecured or the Liens securing such Indebtedness are otherwise permitted and (y) does not exceed $25,000,000 in the aggregate at any time outstanding;
(viiixviii) Indebtedness incurred by any Foreign Subsidiary for working capital or general corporate purposes (Aincluding for acquisitions) a Guarantee which is not guaranteed, or secured, by any assets of any Loan Party (other than the Borrower Equity Interests of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated such Foreign Subsidiary that are not pledged to the Obligations to Administrative Agent as security for the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (BObligations) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding to exceed $5,000,000 60,000,000 at any time outstanding;
(ixxix) Indebtedness owed to incurred by the Borrower or any Person (including obligations of its Restricted Subsidiaries in respect of letters of credit for credit, bank guarantees, supporting obligations, bankers’ acceptances, performance bonds, surety bonds, statutory bonds, export or import indemnities, customs and appeal bonds, warehouse receipts or similar instruments issued or created in the benefit ordinary course of such Person) providing workers’ compensationbusiness, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insuranceinsurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims; provided that no such Indebtedness is in respect of borrowed money;
(xx) obligations in respect of performance, pursuant to reimbursement bid, appeal and surety bonds and performance and completion guarantees and similar obligations provided by the Borrower or indemnification any of its Restricted Subsidiaries or obligations to such Personin respect of letters of credit, bank guarantees or similar instruments related thereto, in each case in the ordinary course of business;
(xxi) Indebtedness representing deferred compensation or similar obligations to employees or directors of the Borrower or any of its Restricted Subsidiaries incurred in the ordinary course of business;
(xxxii) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to current or former officers, managers, consultants, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Borrower or any direct or indirect parent of the Borrower permitted by Section 6.08; provided the aggregate principal amount of such Indebtedness shall not exceed $5,000,000 at any time outstanding;
(xxiii) Indebtedness under the Convertible Note (and any Permitted Refinancing thereof) in an aggregate principal amount not to exceed $25,000,000, plus accrual of any interest thereon that is paid in kind;
(xxiv) unsecured Indebtedness consisting of Guarantees of amounts owing by customers of the Borrower under equipment and vendor financing programs in an aggregate amount, when combined with Investments pursuant to Section 6.04(q), not to exceed $40,000,000 at any time outstanding;
(xxv) to the extent constituting Indebtedness, (a) Series B Preferred Stock in an initial face amount of up to $100,000,000 (plus any interest or dividends paid in kind) and any Permitted Refinancing thereof, (b) Series C Preferred Stock in an initial face amount of up to $100,000,000 (plus any interest or dividends paid in kind) and any Permitted Refinancing thereof and (c) unsecured Indebtedness (including, to the extent constituting Indebtedness, additional preferred stock) in an aggregate principal or face amount not to exceed $100,000,000 (plus any interest or dividends paid in kind) at any time outstanding; provided that such Indebtedness incurred pursuant to this clause (xxv) shall satisfy the Required Conditions;
(xxvi) Indebtedness in connection with Permitted Receivables Financings in an aggregate amount not to exceed $25,000,000 at any time outstanding;
(xxvii) any Attributable Indebtedness of the Borrower or any Restricted Subsidiary in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance connection with Sale and completion guarantees and similar obligations (other than in respect of other Indebtedness), in each case provided in the ordinary course of business;Leaseback Transactions permitted under Section 6.06; and
(xixxviii) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;[reserved]; and
(xiixxix) Capital Lease Obligations other unsecured or junior lien Indebtedness of the Borrower or any Restricted Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding to exceed $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 30,000,000 at any time outstanding; provided that any such Preferred junior lien Indebtedness shall be subject to a customary intercreditor agreement in form and substance reasonably acceptable to the Administrative Agent.
(b) The Borrower will not, nor will it permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests, other than to the extent such preferred Equity Interests issued by satisfy the Required Conditions; provided that (x) the Borrower to Holdings for purposes of matching Preferred may issue other preferred Equity Interests issued by Holdings to the extent constituting Indebtedness that is permitted pursuant to Section 6.01(a) and (y) no preferred Equity Interests of the Borrower shall require payments of cash coupons or cash dividends unless such preferred Equity Interests satisfy the Required Conditions and such preferred Equity Interests are deemed to be excluded from incurred under Section 6.01(a)(xxv), whether or not constituting Indebtedness, and reduce the calculation of such amountavailability thereunder.
Appears in 1 contract
Samples: Credit Agreement (Eastman Kodak Co)
Indebtedness; Certain Equity Securities. (a) The Borrower Parent will not, and will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1) Indebtedness existing on the Effective date hereofEffective Date and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one Section 6.01 of the other subsections of this Section 10.1.(a), Disclosure Letter and (3) extensions, renewals and replacements of any such Refinancing Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replacedthereof;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower Parent to any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower Parent or any other Subsidiary, Restricted Subsidiary (other than Indebtedness permitted under Section 6.01(a)(xx)); provided that (A) that such Indebtedness of shall not have been transferred to any Subsidiary that is not a Person other than Parent or any Restricted Subsidiary, (B) any such Indebtedness owing by any Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Restricted Subsidiary that is not a Loan Party shall be unsecured and subordinated in right of payment to the Loan Document Obligations on terms customary for intercompany subordinated Indebtedness, as reasonably satisfactory to determined by the AgentAdministrative Agent and (C) any such Indebtedness shall be incurred in compliance with Section 6.04;
(iv) Guarantees incurred in compliance with Section 6.04;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower Parent or any other Subsidiary, provided that Restricted Subsidiary (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
(A) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereofSynthetic Lease Obligations, provided that such Indebtedness is incurred prior to or within 90 180 days after such acquisition or the completion of such construction or improvement, improvement and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements Indebtedness does not exceed the principal cost of acquiring, constructing or improving such fixed or capital assets or (B) assumed in connection with the acquisition of any fixed or capital assets, and Refinancing Indebtedness in respect of any of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), foregoing; provided that the aggregate principal amount of Indebtedness permitted by this clause (viiv) shall not exceed $5,000,000 50,000,00075,000,000 at any time outstanding;
(vi) Indebtedness in respect of netting services, overdraft protections deposit and checking accounts, in each case, in the ordinary course of business;
(vii) Indebtedness in respect of letters of credit, bank guarantees and similar instruments issued for the account of Parent or any Restricted Subsidiary in the ordinary course of business supporting obligations under workers’ compensation, unemployment insurance and other social security laws;
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower Parent or any Restricted Subsidiary in the form of bona fide purchase price adjustments or earn-outs incurred prior to in connection with any Permitted Acquisition or other Investment permitted by Section 6.04;
(ix) the Fifth Amendment Effective Date Senior Notes and any Refinancing Indebtedness in respect thereof;
(x) Indebtedness under the ABL Credit Agreement in an aggregate principal amount not exceeding to exceed the greater of (A) $5,000,000 650,000,000 and (B) the Borrowing Base (measured as of the date of incurrence) at any time outstanding;
(ixxi) Indebtedness owed to any Person (including obligations of Loan Parties in respect of letters surety bonds (whether bid performance or otherwise) and performance and completion guarantees and other obligations of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Persona like nature, in each case incurred in the ordinary course of business;
(xA) Permitted Debt; provided that, after giving effect to the incurrence of such Indebtedness and any related transaction on a Pro Forma Basis the Total Leverage Ratio shall not exceed 3.754.00 to 1.00 (in each case calculated as of the last day of the fiscal quarter of Parent then most recently ended for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b)); provided, further, that (I) the aggregate principal amount of Indebtedness of the Borrower or Restricted Subsidiaries that are not Loan Parties permitted by this clause (xii) shall not exceed $50,000,000 at any Subsidiary in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance time outstanding and completion guarantees and similar obligations (other than in respect of other Indebtedness), in each case provided in the ordinary course of business;
(xiB) Refinancing Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are Indebtedness incurred prior pursuant to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amount.above;
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower Company will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1) Indebtedness existing on the Effective Date date hereof and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), 6.01 and (3) extensions, renewals and replacements of any such Indebtedness described that do not increase the outstanding principal amount thereof (except to the extent of any reasonable premiums, fees and expenses incurred in clause (1connection with any such extensions, renewals and replacements) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be result in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter decreased weighted average life than the Indebtedness being extended, renewed or replacedthereof;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower Company to any Subsidiary and of any Subsidiary to the Borrower Company or any other Subsidiary, ; provided (A) that Indebtedness of any Subsidiary that is not a Loan Party owing to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent6.04;
(viv) Guarantees by the Borrower Company of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower Company or any other Subsidiary, ; provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations6.04;
(Av) Indebtedness of the Borrower Company or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations (other than in respect of leased real property) and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (except to the extent of any reasonable premiums, fees and expenses incurred in connection with any such extensions, renewals and replacements) or result in an earlier maturity date or decreased weighted average life thereof; provided that (A) before and after giving effect to the incurrence of such Indebtedness, no Default or Event of Default shall have occurred and be continuing, (B) such Indebtedness is incurred prior to or within 90 180 days after such acquisition or the completion of such construction or improvement, improvement and (BC) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness incurred on or after the Effective Date and permitted by this clause (viv) and clause (vii) below, plus the aggregate book value of all assets sold after the Effective Date pursuant to sale and leaseback transactions permitted by clause (b) of Section 6.06 shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause 300,000,000;
(vi) that is Without duplication of Indebtedness described in clause (v) hereof, Indebtedness of the Company or any Subsidiary incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned acquisition by the Borrower Company or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 the Effective Date of real property and improvements thereto (but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of inventory or in connection with such Person becoming a Subsidiaryother personal property located therein), and extensions, renewals and replacements of any such Indebtedness so long as that do not increase the outstanding principal amount thereof (except to the extent of any reasonable premiums, fees and expenses incurred in connection with any such extensions, renewals and replacements does not exceed replacements) or result in an earlier maturity date or decreased weighted average life thereof; provided that (A) before and after giving effect to the principal incurrence of such Indebtedness, no Default or Event of Default shall have occurred and be continuing,(B) the terms of such Indebtedness are commercially reasonable and (C) the secured recourse to the Company or any Subsidiary of such Indebtedness shall be limited to the value of the real property and improvements financed by such Indebtedness;
(vii) Indebtedness being extendedof the Company or any Subsidiary relating to purchase money security interests (as defined in the New York Uniform Commercial Code, renewed as amended); provided that, (A) before and after giving effect to the incurrence of such Indebtedness, no Default or replaced Event of Default shall have occurred and be continuing, and (plus any accrued but unpaid interest and redemption premium thereon), provided that B) the aggregate principal amount of Indebtedness permitted by this clause (vii) shall be subject to the limitation set forth in the proviso to clause (v) above.
(viii) Guarantees by the Company or any of its Subsidiaries of Indebtedness of third parties given in connection with the acquisition or improvement of real property for use in the business of the Company and its Subsidiaries not exceed exceeding $5,000,000 10,000,000 at any one time outstanding;
(viiiix) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall software licenses required to be subordinated to the Obligations to the same extent and reflected as indebtedness on the same terms Company’s consolidated balance sheet in an aggregate amount not exceeding $10,000,000;
(x) without duplication of any other Indebtedness permitted hereunder, liabilities for leases of real property characterized as the Indebtedness so Guaranteed is subordinated to the Obligations and for purposes of GAAP;
(Bxi) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 50,000,000 at any time outstanding;
(ixxii) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(x) Indebtedness on account of the Borrower or any Subsidiary Series A Warrants issued to Yucaipa Corporate Initiatives Fund I, L.P., Yucaipa American Alliance (Parallel) Fund I, L.P. and Yucaipa American Alliance Fund I, L.P. in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations (other than in respect of other Indebtedness), in each case provided in connection with the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations Transactions to the extent that GAAP requires such Warrants to be included as a liability on the Consolidated balance sheet of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date Company and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a)Subsidiaries;
(xiii) (AIndebtedness of the Borrowers in an amount not to exceed $32,700,000 to Blue Ridge Investments, LLC which Indebtedness shall be secured pursuant to Section 6.02(i) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreementhereof; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium Borrowers on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect account of the Convertible Notes Notes, in an aggregate principal amount not exceeding to exceed $150,000,000 (420,000,000, plus an over allotment of up any additional amounts recorded in accordance with GAAP related to 15.0%) the convertible bond hedge and warrant transaction issued concurrently with the Convertible Notes, outstanding at any time outstanding(or such greater amount as the Administrative Agent, in its discretion, may agree).
(cb) Neither Holdings nor the Borrower willThe Company will not, nor will they the Company permit any Subsidiary to, issue any preferred stock or permit to remain outstanding any other preferred Equity Interests, other than Qualified Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amountStock.
Appears in 1 contract
Samples: Credit Agreement (Great Atlantic & Pacific Tea Co Inc)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit None of the Company or any Subsidiary to, will create, incur, assume or permit to exist any Indebtedness, except:
(ia) Indebtedness created under the Loan Documents;
(ii) (1b) Indebtedness existing on the Effective Date and set forth on Schedule 6.01 and Refinancing Indebtedness in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one respect of any of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replacedforegoing;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(ivc) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower Company or any other Subsidiary, ; provided that (A) that any such Indebtedness owing by any Loan Party shall be unsecured and shall be subordinated in right of payment to the Loan Document Obligations on terms customary for intercompany subordinated Indebtedness, as reasonably determined by the Administrative Agent, (B) any such Indebtedness owing to any Loan Party shall be evidenced by a promissory note which shall have been pledged pursuant to the Collateral Agreement and (C) any such Indebtedness owing by any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to incurred in compliance with Section 10.4. 6.04(d);
(d) Guarantees incurred in compliance with Section 6.04;
(e) Permitted First Priority Refinancing Indebtedness, Permitted Second Priority Refinancing Indebtedness and any Refinancing Indebtedness in respect of any of the foregoing;
(Bf) (i) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
(A) Indebtedness of the Borrower Company or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations Obligations, purchase money Indebtedness and any Indebtedness assumed by the Borrower Company or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, thereof and (Bii) extensions, renewals and replacements Refinancing Indebtedness in respect of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed incurred or replaced assumed pursuant to clause (plus any accrued but unpaid interest and premium thereon)i) above; provided, however, provided that the aggregate principal amount of Indebtedness permitted by this clause (vif) shall not exceed the greater of (x) $5,000,000 150,000,000 and (y) 5.0% of Total Assets (at the time of incurrence) at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(viii) Indebtedness of any Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Subsidiary in a transaction permitted hereunder) after October 6, 2006 but prior to the Fifth Amendment Effective Date, or Indebtedness of any Person that is assumed by any Subsidiary in connection with an acquisition of assets by such Subsidiary in a Permitted Acquisition; provided that such Indebtedness exists at the time such Person becomes a Subsidiary (or is so merged or consolidated) or such assets are acquired and was is not created in contemplation of or in connection with such Person becoming a SubsidiarySubsidiary (or such merger or consolidation) or such assets being acquired, and extensions, renewals and replacements (ii) Refinancing Indebtedness in respect of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced assumed pursuant to clause (plus any accrued but unpaid interest and redemption premium thereon), i) above; provided further that the aggregate principal amount of Indebtedness permitted by this clause (viig) shall not exceed the greater of (x) $5,000,000 200,000,000 and (y) 6.50% of Total Assets (at the time of incurrence) at any time outstanding;
(viiih) Permitted Unsecured Indebtedness so long as, at the time of incurrence of such Permitted Unsecured Indebtedness, the Net Leverage Ratio, calculated on a Pro Forma Basis as of the date of incurrence thereof, is not in excess of 5.50 to 1.00; provided that (Ai) a Guarantee by immediately prior to and immediately after giving effect to the Borrower incurrence of any Permitted Unsecured Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(Ah), no Event of Default shall have occurred and be continuing and (ii) shall be subordinated the Company will, on the date of incurrence of such Indebtedness, deliver to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness Administrative Agent a certificate of a Financial Officer of the Borrower or Company, dated such date, confirming the satisfaction of the conditions set forth above and attaching a reasonably detailed calculation of the Net Leverage Ratio on a Pro Forma Basis as of such date identifying the Permitted Unsecured Indebtedness being incurred and specifying that it is being incurred pursuant to this clause (h); provided further that no Subsidiary that is not a Subsidiary Loan Party shall incur any Subsidiary incurred prior to Indebtedness under this Section 6.01(h) if, at the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at time of, and after giving effect to, the incurrence of such Indebtedness (and any time outstandingsubstantially simultaneous use of the Permitted Amount) and the use of proceeds thereof, the Permitted Amount would be less than zero;
(ixi) Indebtedness incurred in the ordinary course of business and owed to in respect of any Person overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any automated clearing-house transfers of funds;
(including obligations j) Indebtedness in respect of letters of credit credit, bank guarantees and similar instruments issued for the benefit account of such Personthe Company or any Subsidiary in the ordinary course of business supporting obligations under (i) providing workers’ ' compensation, health, disability or other employee benefits or propertybenefits, casualty or liability insurance, unemployment insurance and other social security laws and local state and federal payroll taxes, (ii) obligations in connection with self-insurance arrangements in the ordinary course of business and (iii) bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance and reclamation bonds and obligations of a like nature;
(k) Indebtedness consisting of client advances or deposits received in the ordinary course of business;
(l) Alternative Incremental Facility Indebtedness and Refinancing Indebtedness in respect thereof; provided that (i) no Event of Default shall have occurred and be continuing on the date of incurrence thereof, both immediately prior to and immediately after giving effect to such incurrence and (ii) the aggregate amount of the Incremental Commitments established pursuant to reimbursement Section 2.21 on any date, together with the aggregate original amount of all Alternative Incremental Facility Indebtedness incurred under this clause (l) on such date, shall not exceed the Base Incremental Amount as of such date, or an additional amount subject to the Maximum Incremental Amount in effect on such date;
(m) Indebtedness of the Company or any Subsidiary in the form of purchase price adjustments (including in respect of working capital), earnouts, deferred compensation, indemnification obligations or other arrangements representing acquisition consideration or deferred payments of a similar nature incurred in connection with any Permitted Acquisition or other Investments permitted under Section 6.04 or Dispositions permitted under Section 6.05;
(n) Indebtedness of Foreign Subsidiaries; provided that no Foreign Subsidiary shall incur any Indebtedness under this Section 6.01(n) if, at the time of, and after giving effect to, the incurrence of such Indebtedness (and any substantially simultaneous use of the Permitted Amount) and the use of proceeds thereof, the Permitted Amount would be less than zero;
(o) Indebtedness relating to such Personpremium financing arrangements for property and casualty insurance plans and health and welfare benefit plans (including health and workers compensation insurance, in each case employment practices liability insurance and directors and officers insurance), if incurred in the ordinary course of business;
(xp) Indebtedness with respect to any letter of credit naming a Loan Party or a Subsidiary as the Borrower or account party and not issued under this Agreement, in an aggregate amount for all such Indebtedness not to exceed $10,000,000 at any Subsidiary time outstanding;
(q) other unsecured and Subordinated Indebtedness not otherwise described above in respect an aggregate amount at any time outstanding not in excess of performance bonds, bid bonds, appeal bonds, surety bonds, performance $25,000,000;
(r) Non-Recourse Indebtedness of PCC Ventures (and completion guarantees and similar obligations Guarantees thereof (other than in respect of other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations Guarantees of the Borrower principal or interest thereof) by the Company or any other Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use customary for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(anon-recourse financings);
(xiiis) Indebtedness of PCC Ventures or any Permitted Joint Ventures (A) and Guarantees and/or indemnities (other than in respect of payment of principal or interest) thereof by the Borrower Company or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy mattersSubsidiary), in each case in connection with investments ; provided that no PCC Venture or Permitted Joint Venture shall incur any Indebtedness otherwise permitted under this AgreementSection 6.01(s) if, at the time of, and after giving effect to, the incurrence of such Indebtedness (and any substantially simultaneous use of the Permitted Amount) and the use of proceeds thereof, the Permitted Amount would be less than zero;
(t) additional Indebtedness of PCC Ventures in an aggregate amount at any time outstanding not in excess of $50,000,000;
(u) Indebtedness of Subsidiaries organized under the laws of China in an aggregate amount at any time outstanding not in excess of $40,000,000; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (Av) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created Subsidiaries organized under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect laws of the Convertible Notes Turkey in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstandingoutstanding not in excess of €3,000,000.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amount.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Neither the Borrower will not, and will not permit nor any Subsidiary to, will create, incur, assume or permit to exist any Indebtedness, except:
(ia) Indebtedness created under the Loan Documents;
(ii) (1b) Indebtedness existing on the Original Effective Date and set forth in on Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a)6.01, and (3) extensions, renewals and replacements of any such Refinancing Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replacedthereof;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(ivc) Indebtedness of the Borrower to any Subsidiary and of or any Subsidiary to the Borrower or any Subsidiary; provided that (i) such Indebtedness shall not have been transferred to any Person other than the Borrower or any Subsidiary, provided (Aii) any such Indebtedness owing by any Loan Party to a Subsidiary that is not a Loan Party shall be unsecured and subordinated in right of payment to the Loan Document Obligations pursuant to the Intercompany Subordination Agreement, (iii) any such Indebtedness of owing to any Loan Party that is evidenced by a promissory note shall have been pledged pursuant to the Collateral Agreement and (iv) any such Indebtedness owing by any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party (other than Specified Intercompany Indebtedness) shall be subject to incurred in compliance with Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent6.04;
(vd) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this incurred in compliance with Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations6.04;
(Ae) Indebtedness of the Borrower or any Subsidiary (i) incurred to finance the acquisition, construction or improvement of any fixed or capital assetsassets or Intellectual Property, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereofObligations, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, improvement and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements Indebtedness does not exceed the principal cost of acquiring, constructing or improving such fixed or capital assets or Intellectual Property, or (ii) assumed in connection with the acquisition of any fixed or capital assets or Intellectual Property, and Refinancing Indebtedness in respect of any of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon)foregoing; provided, however, provided that the aggregate principal amount of Indebtedness permitted by this clause (vie) shall not exceed $5,000,000 10,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(viif) Indebtedness of any Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Subsidiary in a transaction permitted hereunder) after October 6, 2006 but prior to the Fifth Amendment Original Effective Date, or Indebtedness of any Person that is assumed by the Borrower or any Subsidiary in connection with an acquisition of assets by the Borrower or such Subsidiary in a Permitted Acquisition or other Investment permitted by Section 6.04(n); provided that (i) such Indebtedness exists at the time such Person becomes a Subsidiary (or is so merged or consolidated) or such assets are acquired and was is not created in contemplation of or in connection with such Person becoming a SubsidiarySubsidiary (or such merger or consolidation) or such assets being acquired and (ii) neither the Borrower nor any Subsidiary (other than such Person or the Person with which such Person is merged or consolidated or that so assumes such Person’s Indebtedness) shall Guarantee or otherwise become liable for the payment of such Indebtedness, and extensions, renewals and replacements Refinancing Indebtedness in respect of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), foregoing; provided that the aggregate principal amount of Indebtedness permitted by this clause (viif) shall not exceed $5,000,000 10,000,000 at any time outstanding;
(viiig) (A) a Guarantee by the Borrower Indebtedness owed in respect of any overdrafts and related liabilities arising from treasury, depository, credit-card and cash management services or in connection with any automated clearing house transfers of funds; provided that such Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to repaid in full before the same extent shall become delinquent;
(h) Indebtedness in respect of letters of credit, bank guarantees and on similar instruments issued for the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness account of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
(ix) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of businessbusiness supporting obligations under (i) workers’ compensation, unemployment insurance and other social security laws and (ii) bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and obligations of a like nature;
(xi) Indebtedness of the Borrower or any Subsidiary in respect the form of performance bondspurchase price adjustments, bid bondsearn-outs, appeal bonds, surety bonds, performance and completion guarantees and non-competition agreements or other arrangements representing acquisition consideration or deferred payments of a similar obligations (nature incurred in connection with any Permitted Acquisition or other than in respect of other Indebtedness), in each case provided in the ordinary course of businessInvestment permitted by Section 6.04;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (Aj) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes Foreign Subsidiaries in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) 10,000,000 at any time outstanding.;
(ci) Neither Holdings nor Permitted Convertible Notes, provided that (A) at the time of the incurrence thereof and after giving effect thereto, (1) no Default or Event of Default shall have occurred and be continuing and (2) the Liquidity shall not be less than the greater of (x) 16.67% of the Aggregate Commitment and (y) $10,000,000 and (B) the Borrower will, nor will they permit any Subsidiary to, issue or permit shall have delivered to remain outstanding any Preferred Equity Interests except in the case Administrative Agent a certificate of Holdings or a Financial Officer of the Borrower certifying that (or1) all the requirements set forth in this clause (k) have been satisfied with respect to such incurrence of Permitted Convertible Notes and (2) based on the information then available to the Borrower, the Borrower in good faith expects that Liquidity will not be less than the case greater of (x) 16.67% of the Trust Preferred SecuritiesAggregate Commitment and (y) $10,000,000 at any time during the six month period immediately following such incurrence, MHG Capital Trust I)together with a calculation in support of the satisfaction of the requirement referred to in clause (A)(2) above; and (ii) any Refinancing Indebtedness in respect thereof; provided that the aggregate principal amount of Indebtedness permitted by this clause (k) may not exceed $500,000,000 at any time outstanding;
(i) Permitted Subordinated Notes, Preferred Equity Interests provided that are Qualified Equity Interests at the time of the incurrence thereof and after giving effect thereto, (A) the requirements of Section 1.05 shall be satisfied and (B) no Default or Event of Default shall have occurred and be continuing; and (ii) any Refinancing Indebtedness in respect thereof; provided that the aggregate principal amount of Indebtedness permitted by this clause (l) may not exceed $300,000,000 at any time outstanding; and
(m) other Indebtedness in an aggregate principal amount not exceeding $150,000,000 10,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amount.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower Loan Parties will not, and will not permit any Subsidiary of their Subsidiaries to, directly or indirectly, create, incur, assume or permit to exist (including by way of Guarantee) any Indebtedness, except:
(i) Indebtedness created incurred and outstanding under the Loan Documents;
(ii) (1) Indebtedness existing on the Effective Date and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one debt securities of the other subsections Borrower or any Subsidiary Loan Party; provided that the sum of the aggregate original principal amount of all Incremental Term Loans and the aggregate original principal amount of all Indebtedness issued pursuant to this Section 10.1.(a6.01(a)(ii) shall not exceed the greater of (x) $300.0 million (in each case exclusive of any proceeds thereof that are applied to the refinancing or repayment of the Term Loans and a Permitted Refinancing of any Indebtedness issued pursuant to this Section 6.01(a)(ii), ) and (3y) extensionsthe amount which would cause the Consolidated Senior Secured Leverage Ratio, renewals calculated on a pro forma basis as of the most recent date for which financial statements have been delivered pursuant to Section 5.01 and replacements after giving effect to the incurrence of any such Indebtedness described and the use of proceeds thereof, to exceed 2.75 to 1.00 (it being understood and agreed that any Indebtedness incurred under this clause (y) or clause (B) of Section 2.21(a) shall not reduce the $300.0 million limit in clause (1x) above or (2), provided that such extending, renewal or replacement Indebtedness in clause (A) of Section 2.21(a)); provided further that such Indebtedness shall not be Indebtedness (A) have a greater Weighted Average Life to Maturity than the Initial Term Loan at the time of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose)issuance thereof, (B) shall not be in a mature or require any payment of principal amount that exceeds thereof prior to the principal amount of the Indebtedness being extendedInitial Term Loan Maturity Date, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall have covenants that are not have more restrictive (taken as a whole) than those set forth herein, (D) if such Indebtedness is secured, be subject to an earlier maturity date intercreditor agreement to be entered into by the Administrative Agent and the trustee or shorter weighted average life than other applicable representative for the Indebtedness being extendedholders of such debt securities, renewed reasonably satisfactory in form and substance to the Administrative Agent, (E) not be secured by any assets that are not included in the Collateral and (F) not be recourse to or replacedguaranteed by any Person that is not a Loan Party;
(iii) Additional Mortgage Indebtedness set forth on Schedule 6.01(a)(iii) and extensions, renewals and replacements any Permitted Refinancing thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to or any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary, provided (A) that Indebtedness of any Subsidiary that is not a Loan Party owed to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
(A) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, Party; provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, represented by a note and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior pledged to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 at any time outstanding;
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated Administrative Agent pursuant to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstandingSecurity Documents;
(ix) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(x) 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 other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amount.
Appears in 1 contract
Samples: Credit Agreement (Consolidated Communications Holdings, Inc.)
Indebtedness; Certain Equity Securities. (a) The Each Borrower will not, and will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any IndebtednessIndebtedness or Attributable Debt, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1) Indebtedness Indebtedness, including Guarantees, existing on the Effective Date date hereof and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), 6.01 and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall do not be Indebtedness of an obligor that was not an obligor with respect to increase the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a outstanding principal amount that exceeds the principal amount of the Indebtedness being extended, renewed thereof or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have result in an earlier maturity date or shorter decreased weighted average life than the Indebtedness being extended, renewed or replacedthereof;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior of such Borrower to the Fifth Amendment Effective Date if, on the date of such incurrence other Borrower or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to any Restricted Subsidiary and of any Restricted Subsidiary to the either Borrower or any other Restricted Subsidiary, ; provided (A) that Indebtedness of any Restricted Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. 6.04; provided, further, that any such Indebtedness owing to a Borrower, including any Mirror Note, shall be pledged pursuant to the FCX Pledge Agreement (Indebtedness) or the PTFI Pledge Agreement and any promissary note evidencing any such Indebtedness, including any Mirror Note, shall be delivered to the Security Agent or Administrative Agent, as appropriate;
(Biv) secured or unsecured Indebtedness of the Borrower to Borrowers or any Restricted Subsidiary and Indebtedness Attributable Debt in respect of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary sale and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is leaseback transactions permitted by this Section (other than clause (a)(ii) or (a)(vii))6.06, (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
(A) Indebtedness of the Borrower or any Subsidiary in each case incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof but excluding Additional Infrastructure Financings, and extensions, renewals and replacements of any such Indebtedness or Attributable Debt that do not result in an earlier maturity date or decreased weighted average life thereof, ; provided that (A) any such Indebtedness or Attributable Debt is incurred within 180 days prior to or within 90 180 days after such acquisition or the completion of such construction or improvement, and (B) any such Attributable Debt is incurred in accordance with Section 6.06 and (C) the aggregate principal amount of Indebtedness and aggregate amount of Attributable Debt permitted by this clause (iv) (including any such extensions, renewals and replacements) shall not exceed $50,000,000 at any time outstanding;
(v) unsecured Indebtedness of the Borrowers or any Restricted Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, and extensions, renewals and replacements of any such Indebtedness so long as that do not result in an earlier maturity date or decreased weighted average life thereof; provided that (A) any such Indebtedness is incurred within 180 days prior to or within 180 days after such acquisition or the outstanding principal amount completion of such extensions, renewals construction or improvement and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that B) the aggregate principal amount of Indebtedness permitted by this clause (viv) (including any such extensions, renewals and replacements) shall not exceed $5,000,000 75,000,000 at any time outstanding, and any Indebtedness permitted by this clause ;
(vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of PTFI and/or FCX or Attributable Debt of PTFI or any Person that becomes a Restricted Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or incurred in connection with such Person becoming a Subsidiaryany Additional Infrastructure Financing or any PT Kencana Financing, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does or Attributable Debt that do not exceed the principal of the Indebtedness being extended, renewed result in an earlier maturity date or replaced (plus any accrued but unpaid interest and redemption premium thereon), decreased weighted average life thereof provided that (A) the aggregate principal amount of Indebtedness and the aggregate amount of Attributable Debt permitted by this clause (viivi) (including any such extensions, renewals and replacements) shall not exceed $5,000,000 300,000,000 at any time outstanding;
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations outstanding and (B) other unsecured Indebtedness the Net Proceeds of the Borrower any such Additional Infrastructure Financing or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
(ix) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensationPT Kencana Financing, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(x) 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 other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold case may be, are applied in accordance with the provisions of Section 2.10; (vii) Block B Debt of FCX, PTFI or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Restricted Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to Block B Debt satisfies the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amount.Block B Conditions;
Appears in 1 contract
Samples: Credit Agreement (Freeport McMoran Copper & Gold Inc)
Indebtedness; Certain Equity Securities. (a) The None of the Borrower will not, and will not permit or any Subsidiary to, will create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1x) Indebtedness existing on the Effective Date date hereof and (except in the case of Guarantees in an amount less than $10,000,000) set forth in on Schedule 10.1.(a)6.01, (2y) Refinancing Indebtedness existing in respect of debt owed to non-Affiliates reflected on such schedule and (z) except in the Fifth Amendment Effective Date that is permitted by one case of the other subsections Top-Up Note, extensions and renewals of this Section 10.1.(a), and (3) extensions, renewals and replacements of debt owed by the Borrower or any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect Subsidiary to the Indebtedness being extended, renewed Borrower or replaced (unless any Subsidiary reflected on such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replacedschedule;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to any Subsidiary and of or any Subsidiary to the Borrower or any other Subsidiary, ; provided that (A) that such Indebtedness shall not have been transferred to any Person other than the Borrower or any Subsidiary, (B) any such Indebtedness owing by any Loan Party shall be unsecured and, during any Pledge Effectiveness Period, subordinated in right of payment to the Loan Document Obligations in accordance with the provisions of Exhibit D hereto and (C) any such Indebtedness owing by any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall, unless the Investment Grade Date shall have occurred, be subject to incurred in compliance with Section 10.4. and 6.04;
(Biv) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated Guarantees incurred in compliance with Section 6.04 prior to the Obligations on terms reasonably satisfactory to Investment Grade Date and in compliance with clause (a)(xiv) or (xv) below after the AgentInvestment Grade Date;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
(A) Indebtedness of the Borrower or any Subsidiary (x)(A) incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereofSynthetic Lease Obligations, provided that such Indebtedness is incurred prior to or within 90 180 days after such acquisition or the completion of such construction or improvementimprovement and the principal amount of such Indebtedness does not exceed the cost of acquiring, constructing or improving such fixed or capital assets or (B) assumed in connection with the acquisition of any fixed or capital assets, and Refinancing Indebtedness in respect of any of the foregoing; provided that the aggregate principal amount of Indebtedness permitted by this clause (v)(x) shall not, except as otherwise permitted by clauses (a)(xiv) or (xv) below and Section 6.02(a)(xvii), exceed $75,000,000 at any time outstanding, and (y) Indebtedness of the Borrower or any Subsidiary consisting of Capital Lease Obligations or Synthetic Lease Obligations incurred in connection with Scheduled Dispositions of owned real estate that are effected as Sale/Leaseback Transactions;
(vi) Indebtedness of any Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Subsidiary in a transaction permitted hereunder) after the date hereof, or Indebtedness of any Person that is assumed by any Subsidiary in connection with an acquisition of assets by such Subsidiary in a Permitted Acquisition, provided that (A) such Indebtedness exists at the time such Person becomes a Subsidiary (or is so merged or consolidated) or such assets are acquired and is not created in contemplation of or in connection with such Person becoming a Subsidiary (or such merger or consolidation) or such assets being acquired and (B) extensionsneither the Borrower nor any Subsidiary (other than such Person or the Subsidiary with which such Person is merged or consolidated or the Person that so assumes such Person’s Indebtedness) shall Guarantee or otherwise become liable for the payment of such Indebtedness, renewals and replacements Refinancing Indebtedness in respect of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon)foregoing; provided, however, provided that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not not, except as otherwise permitted by clause (a)(xiv) or (xv) below, exceed $5,000,000 75,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (viix) shall not exceed $5,000,000 at any time outstanding;
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date Foreign Subsidiaries in an aggregate principal amount not exceeding in excess of $5,000,000 at any time outstanding;
100,000,000, except as otherwise permitted by clause (ixa)(xv) Indebtedness owed to any Person below and (including obligations in respect of letters of credit for y) on and after the benefit of such Person) providing workers’ compensationBrazil Transaction Closing Date, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(x) 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 other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes NCR Manaus in an aggregate principal amount not exceeding in excess of $150,000,000 50,000,000, except as otherwise permitted by clause (plus an over allotment of up to 15.0%a)(xv) at any time outstanding.
(c) Neither Holdings nor below, and the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued Guarantee by the Borrower to Holdings for purposes or other Loan Parties, on an unsecured basis, of matching Preferred the Borrower’s pro rata share of Indebtedness of NCR Manaus incurred under this clause (vii)(y), based on the percentage of all outstanding common Equity Interests issued of NCR Manaus owned by Holdings shall be excluded from the calculation of such amount.Borrower or directly or indirectly wholly owned Subsidiaries;
Appears in 1 contract
Samples: Credit Agreement (NCR Corp)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1) Indebtedness existing on the Effective Date date hereof and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replaced6.01;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other another Subsidiary, ; provided that (A) that any such Indebtedness shall not have been transferred or pledged to any third party, (B) any such Indebtedness owed by a Loan Party shall be unsecured and subordinated to the Obligations on terms customary for intercompany subordinated Indebtedness, (C) any such Indebtedness owed to a Loan Party shall be evidenced by an intercompany note and pledged under the Security Documents and (D) Indebtedness of any Subsidiary that is not a Loan Party owed to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and clause (Bii) Indebtedness of the Borrower to any Subsidiary and Indebtedness proviso in paragraph (d) of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the AgentSection 6.04;
(viv) Guarantees by the Borrower of Indebtedness of any Subsidiary (other than any Broker-Dealer Subsidiary) and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, ; provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (vii) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligationsproviso in paragraph (d) of Section 6.04;
(Av) Indebtedness of the Borrower or any Subsidiary (other than any Broker-Dealer Subsidiary) incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary (other than any Broker-Dealer Subsidiary) in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof or change the parties directly or indirectly responsible for the payment thereof; provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement; provided further that the aggregate principal amount of Indebtedness permitted to be incurred by this clause (v) shall not exceed (A) $5,000,000 between the Closing Date and December 31, 2007, (B) $1,250,000 during any fiscal year thereafter or (C) $10,000,000 in the aggregate during the term of this Agreement; and provided, further however that the maximum aggregate principal amount of Indebtedness permitted to be incurred in any year pursuant to the foregoing clause (A) or (B) shall be increased by the amount, if any, by which (x) the amount of Indebtedness permitted to be incurred under clause (A) or (B), as applicable, during the immediately preceding year (without giving effect to any carryover pursuant to this proviso) exceeds (y) the amount of Indebtedness actually incurred under clause (A) or (B), as applicable, during such immediately preceding year.
(vi) Indebtedness of any Person that becomes a Subsidiary after the date hereof; provided that (A) such 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 and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 at any time outstanding;
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
(ix) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(x) Indebtedness of the Borrower or any Subsidiary as an account party in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations (other than in respect trade letters of other Indebtedness), in each case provided in the ordinary course of businesscredit;
(xiviii) Indebtedness in respect of Swap Hedging Agreements permitted by Section 10.6.6.07;
(xiiix) Capital Lease Obligations of the Borrower or Permitted Subordinated Indebtedness in an aggregate amount outstanding at any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall time not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other greater than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement$25,000,000; and
(xivx) Guarantees by the Borrower or other unsecured Indebtedness in an aggregate principal amount outstanding at any Subsidiary of: (A) Indebtedness of any joint venture that is time not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtednessgreater than $1,000,000.
(b) Holdings The Borrower will not createissue any preferred Equity Interests, incurexcept to the extent it could incur Permitted Subordinated Indebtedness or other unsecured Indebtedness pursuant to clause (ix) or (x) of paragraph (a) of this Section (and for all purposes of this Section, assume any such issuance of preferred Equity Interests will be deemed to constitute an incurrence of Permitted Subordinated Indebtedness or permit to exist any unsecured Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by as the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (ximay elect) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate a principal amount equal to the stated amount or, if greater, the liquidation preference of such preferred Equity Interests. The Borrower will not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, to issue or permit to remain outstanding any Preferred preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amountInterests.
Appears in 1 contract
Samples: Credit Agreement (Investools Inc)
Indebtedness; Certain Equity Securities. (a) The Borrower will Loan Parties shall not, and will shall not permit any Subsidiary of their Subsidiaries to, create, incur, assume or permit to exist (including by way of Guarantee) any IndebtednessIndebtedness or enter into any Hedging Agreement, except:
(i) Indebtedness created incurred and outstanding under the Loan Documents;
(ii) (1) Indebtedness existing on the Effective Date to Remain Outstanding and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replacedPermitted Refinancing thereof;
(iii) Additional Mortgage (x) Indebtedness of any Loan Party owed to any other Loan Party or to any Non-Loan Party, (y) Indebtedness of any Non-Loan Party owed to any other Non-Loan Party, and extensions(z) Indebtedness of any Non-Loan Party owed to any Loan Party in an aggregate principal amount outstanding at any time not to exceed, renewals when taken together with investments then outstanding pursuant to Section 6.04(xiv) and replacements thereof(xv) and Guarantees then outstanding pursuant to clause (iv)(z) below, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date 25% of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
Consolidated Total Assets; (iv) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary, provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent;
(vx) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a other Loan Party, (y) Guarantees by any Non-Loan Party shall be subject of Indebtedness of any Loan Party or any other Non-Loan Party, and (z) Guarantees by any Loan Party of Indebtedness of any Non-Loan Party in an aggregate principal amount outstanding at any time not to exceed, when taken together with investments then outstanding pursuant to Section 10.4. 6.04(xiv) and (Cxv) Guarantees permitted and Indebtedness then outstanding pursuant to clause (iii)(z) above, 25% of Consolidated Total Assets, in each case under this clause clause
(viv) shall to the extent such Indebtedness was permitted to be incurred hereunder, and if such Indebtedness is subordinated in right of payment to the Obligations under the Loan Documents, such Guarantee is at least as subordinated in right of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated payment to the Obligations;
(Av) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided that such Indebtedness is extinguished within two Business Days of its incurrence;
(vi) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased Weighted Average Life to Maturity thereof; provided that (A) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, improvement and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 75,000,000 at any time outstanding;
(viiivii) (A) a Guarantee by Hedging Agreements entered into in the Borrower ordinary course of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent business and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstandingfor speculative purposes;
(ixviii) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such of) any Person) , including any Insurance Subsidiary, providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including medical malpractice, other professional and general liability insurance, ) to Borrower or any Subsidiary pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(xix) Indebtedness of the Borrower or any Subsidiary in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees bonds and similar obligations (other than in respect and trade-related letters of other Indebtedness)credit, in each case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(x) Indebtedness arising from agreements of Borrower or any Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or Subsidiary, other than Guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition;
(xi) Permitted Subordinated Indebtedness; provided that (x) no Default shall have occurred or be continuing or would result therefrom, (y) after giving effect to the incurrence of such Indebtedness (and any other Indebtedness incurred since the last day of the immediately preceding Test Period) on a pro forma basis as if such indebtedness was incurred on the first day of the immediately preceding Test Period (but tested as if the applicable ratio were the ratio for the next succeeding Test Period), Borrower would be in respect compliance with the Financial Covenants and (z) to the extent the aggregate principal amount of Swap Agreements permitted by such Permitted Subordinated Indebtedness exceeds $500,000,000 since the Effective Date, the proceeds of such Permitted Subordinated Indebtedness shall be applied in accordance with paragraphs (c) and (e) of Section 10.6.2.05;
(xii) Capital Lease Obligations Indebtedness of a Person existing at the time such Person becomes a Subsidiary of Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes Permitted Acquisition in an aggregate principal amount not exceeding to exceed $150,000,000 100,000,000, but only if such Indebtedness was not created or incurred in contemplation of such Person becoming a Subsidiary; provided that (plus x) no Default shall have occurred or be continuing or would result therefrom and (y) after giving effect to the incurrence of such Indebtedness (and any other Indebtedness incurred since the last day of the immediately preceding Test Period) on a pro forma basis as if such acquisition was consummated and such indebtedness was incurred on the first day of the immediately preceding Test Period (but tested as if the applicable ratio were the ratio for the next succeeding Test Period), Borrower would be in compliance with the Financial Covenants; and
(xiii) other Indebtedness of Borrower or any Subsidiary in an over allotment of up aggregate principal amount not to 15.0%) exceed $125,000,000 at any time outstanding.
(cb) Neither Holdings nor the Borrower willThe Loan Parties shall not, nor will they and shall not permit any Subsidiary to, of its Subsidiaries to issue or permit to remain outstanding any Preferred Stock or other preferred Equity Interests except in Interest which (i) matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise, (ii) is or may become redeemable or repurchaseable at the case option of Holdings or the Borrower (orholder thereof, in whole or in part, or (iii) is convertible or exchangeable at the case option of the Trust holder thereof for Indebtedness or Preferred Securities, MHG Capital Trust I), Preferred Stock or any other preferred Equity Interests that are Qualified Equity Interests Interest described in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amountthis paragraph.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Neither the Borrower will not, and will not permit nor any Subsidiary to, will create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1) Indebtedness existing on the Restatement Effective Date and set forth on Schedule 6.01 and Refinancing Indebtedness in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replacedthereof;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to any Subsidiary and of or any Subsidiary to the Borrower or any other Subsidiary, ; provided that (A) such Indebtedness shall not have been transferred to any Person other than the Borrower or any Subsidiary, (B) any such Indebtedness owing by any Loan Party shall be subordinated to the Loan Document Obligations on terms customary for intercompany subordinated Indebtedness, as reasonably determined by the Administrative Agent, (C) any such Indebtedness owing to any Loan Party shall be evidenced by a promissory note that shall have been pledged pursuant to the Collateral Agreement and (D) any such Indebtedness of owing by any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to incurred in compliance with Section 10.4. and 6.04;
(Biv) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the AgentGuarantees incurred in compliance with Section 6.04;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
(A) Indebtedness of the Borrower or any Subsidiary (A) incurred to finance the acquisition, construction or and improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, Obligations; provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, improvement and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements Indebtedness does not exceed the principal cost of acquiring, constructing or improving such fixed or capital assets, or (B) assumed in connection with the acquisition of any fixed or capital assets, and Refinancing Indebtedness in respect of any of the foregoing; provided that the aggregate principal amount of Indebtedness being extendedpermitted by this clause (v) shall not exceed $25,000,000 at any time outstanding;
(vi) Indebtedness of the Borrower or any Subsidiary (A) incurred to finance the acquisition, renewed construction and improvement of any real property, provided that such Indebtedness is incurred prior to or replaced within 90 days after such acquisition and the principal amount of such Indebtedness does not exceed the cost of acquiring such real property or (plus B) assumed in connection with the acquisition of any accrued but unpaid interest real property, and premium thereon)Refinancing Indebtedness in respect of any of the foregoing; provided, however, provided that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 25,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Subsidiary in a transaction permitted hereunder) after October 6the date hereof, 2006 but prior to or Indebtedness of any Person that is assumed by the Fifth Amendment Effective DateBorrower or any Subsidiary in connection with an acquisition of assets by the Borrower or such Subsidiary in a Permitted Acquisition, provided that (A) such Indebtedness exists at the time such Person becomes a Subsidiary (or is so merged or consolidated) or such assets are acquired and was is not created in contemplation of or in connection with such Person becoming a SubsidiarySubsidiary (or such merger or consolidation) or such assets being acquired and (B) neither the Borrower nor any Subsidiary (other than such Person or the Subsidiary with which such Person is merged or consolidated or the Person that so assumes such Person’s Indebtedness) shall Guarantee or otherwise become liable for the payment of such Indebtedness, and extensions, renewals and replacements Refinancing Indebtedness in respect of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), foregoing; provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) that is secured or is owing by any Subsidiary that is not a Loan Party shall not exceed $5,000,000 10,000,000 at any time outstanding;
(viii) (A) a Guarantee by the Borrower Indebtedness owed in respect of any overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any automated clearing-house transfers of funds; provided that such Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to repaid in full within five Business Days of the Obligations to incurrence thereof;
(ix) obligations under bonds securing the same extent performance of bids, tenders, contracts or leases incurred in the ordinary course of business;
(x) endorsement of instruments and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and other payment items for deposit; and
(Bxi) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 175,000,000 at any time outstanding;
; provided that the aggregate principal amount of Indebtedness permitted by this clause (ixxi) Indebtedness owed to that (A) is secured, (B) is owing by any Person Subsidiary that is not a Loan Party or (including obligations in respect of letters of credit for the benefit of such PersonC) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course case of business;
(x) any such Indebtedness of the Borrower type referred to in clause (a) 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 other Indebtedness), in each case provided in the ordinary course of business;
(xib) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower definition of the term “Indebtedness”, (1) has the stated final maturity that is, or any Subsidiary that are incurred prior to upon nonsatisfaction of certain conditions could be, earlier than the Fifth Amendment Effective date 90 days after the later of the latest Maturity Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful latest Revolving Maturity Date in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, effect on the date of incurrence of such incurrence on a Pro Forma BasisIndebtedness or (2) has weighted average life to maturity that is shorter than the weighted average life to maturity of each Class of the Term Loans remaining as of the date of such incurrence, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) 35,000,000 at any time outstanding.
(cb) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, will issue or permit to remain outstanding exist any Preferred Disqualified Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amountInterests.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Neither the Borrower will not, and will not permit nor any Subsidiary to, will create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1) Indebtedness existing on the Restatement Effective Date and set forth on Schedule 6.01 and Refinancing Indebtedness in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replacedthereof;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to any Subsidiary and of or any Subsidiary to the Borrower or any other Subsidiary, ; provided that (A) such Indebtedness shall not have been transferred to any Person other than the Borrower or any Subsidiary, (B) any such Indebtedness owing by any Loan Party shall be subordinated to the Loan Document Obligations on terms customary for intercompany subordinated Indebtedness, as reasonably determined by the Administrative Agent, (C) any such Indebtedness owing to any Loan Party shall be evidenced by a promissory note that shall have been pledged pursuant to the Collateral Agreement and (D) any such Indebtedness of owing by any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to incurred in compliance with Section 10.4. and 6.04;
(Biv) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the AgentGuarantees incurred in compliance with Section 6.04;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
(A) Indebtedness of the Borrower or any Subsidiary (A) incurred to finance the acquisition, construction or and improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, Obligations; provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, improvement and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements Indebtedness does not exceed the principal cost of acquiring, constructing or improving such fixed or capital assets, or (B) assumed in connection with the acquisition of any fixed or capital assets, and Refinancing Indebtedness in respect of any of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon)foregoing; provided, however, provided that the aggregate principal amount of Indebtedness permitted by this clause (v) shall not exceed $25,000,000 at any time outstanding;
(vi) Indebtedness of the Borrower or any Subsidiary (A) incurred to finance the acquisition, construction and improvement of any real property, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition and the principal amount of such Indebtedness does not exceed the cost of acquiring such real property or (B) assumed in connection with the acquisition of any real property, and Refinancing Indebtedness in respect of any of the foregoing; provided that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 25,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Subsidiary in a transaction permitted hereunder) after October 6the date hereof, 2006 but prior to or Indebtedness of any Person that is assumed by the Fifth Amendment Effective DateBorrower or any Subsidiary in connection with an acquisition of assets by the Borrower or such Subsidiary in a Permitted Acquisition, provided that (A) such Indebtedness exists at the time such Person becomes a Subsidiary (or is so merged or consolidated) or such assets are acquired and was is not created in contemplation of or in connection with such Person becoming a SubsidiarySubsidiary (or such merger or consolidation) or such assets being acquired and (B) neither the Borrower nor any Subsidiary (other than such Person or the Subsidiary with which such Person is merged or consolidated or the Person that so assumes such Person’s Indebtedness) shall Guarantee or otherwise become liable for the payment of such Indebtedness, and extensions, renewals and replacements Refinancing Indebtedness in respect of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), foregoing; provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) that is secured or is owing by any Subsidiary that is not a Loan Party shall not exceed $5,000,000 10,000,000 at any time outstanding;
(viii) (A) a Guarantee by the Borrower Indebtedness owed in respect of any overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any automated clearing-house transfers of funds; provided that such Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness repaid in full within five Business Days of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstandingincurrence thereof;
(ix) Indebtedness owed to any Person (including obligations in respect under bonds securing the performance of letters of credit for the benefit of such Person) providing workers’ compensationbids, healthtenders, disability contracts or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case leases incurred in the ordinary course of business;
(x) Indebtedness endorsement of the Borrower or any Subsidiary in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance instruments and completion guarantees and similar obligations (other than in respect of other Indebtedness), in each case provided in the ordinary course of business;payment items for deposit; and
(xi) other Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 175,000,000 at any time outstanding; provided that the aggregate principal amount of Indebtedness permitted by this clause (plus an over allotment xi) that (A) is secured, (B) is owing by any Subsidiary that is not a Loan Party or (C) in the case of up any such Indebtedness of the type referred to 15.0%in clause (a) or (b) of the definition of the term “Indebtedness”, has the stated final maturity that is, or upon nonsatisfaction of certain conditions could be, earlier than the date 90 days after the latest Revolving Maturity Date in effect on the date of incurrence of such Indebtedness, shall not exceed $35,000,000 at any time outstanding.
(cb) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, will issue or permit to remain outstanding exist any Preferred Disqualified Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amountInterests.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan DocumentsDocuments or any Credit Agreement Refinancing Indebtedness (including pursuant to any Refinancing Amendment);
(ii) [Reserved];
(1iii) Indebtedness of AC Holdings and any of its subsidiaries that are Loan Parties in respect of the AC Holdings Bonds;
(iv) Indebtedness (other than Indebtedness permitted under clause (ii) or (iii) of this paragraph (a)) existing on the Sixth ARCA Effective Date and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replaced6.01;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(ivv) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary, ; provided that (A) that any such Indebtedness of any Subsidiary that is not a Loan Collateral Support Party to the Borrower or any Subsidiary that is a Loan Collateral Support Party shall be subject to Section 10.4. and 6.04, (B) Indebtedness of except to the Borrower to extent any Subsidiary Regulatory Authorization would be required therefor and has not been obtained, any such Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party Guarantor shall be subordinated to the Facility Obligations on terms reasonably satisfactory to the Administrative Agent, and (C) any such Indebtedness owed to any Loan Party and evidenced by a promissory note shall be pledged pursuant to clause (b) of the definition of “Collateral and Guarantee Requirement”;
(vvi) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other SubsidiarySubsidiary (other than Indebtedness permitted solely pursuant to clauses (a)(iii) (except for Guarantees of the AC Holdings Bonds by any of its subsidiaries that is a Loan Party to the extent required under the AC Holdings Indenture as in effect on the Sixth ARCA Effective Date), (a)(iv), (a)(viii) (except for unsecured Guarantees of the PAETEC Notes by the Borrower) or (a)(xx) or any combination thereof); provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Collateral Support Party of Indebtedness of any Subsidiary that is not a Loan Collateral Support Party shall be subject to Section 10.4. and 6.04, (CB) Guarantees permitted under this clause (vvi) shall be subordinated to the Secured Obligations of the applicable Subsidiary that is a Loan Party if and to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the ObligationsSecured Obligations and (C) no Indebtedness shall be Guaranteed by any Subsidiary unless such Subsidiary is a Loan Party that has Guaranteed the Secured Obligations pursuant to the Guarantee Agreement;
(Avii) Indebtedness of the Borrower or any Subsidiary Wireline Company incurred to finance the acquisition, construction construction, restoration or improvement of any fixed or capital assets, including Capital Lease Obligations (whether through the direct acquisition of such assets or the acquisition of Equity Interests in a Person holding only such fixed or capital assets) and any Indebtedness assumed by the Borrower or any Subsidiary Wireline Company in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, ; provided that (A) such Indebtedness is incurred (or if assumed, was incurred) prior to or within 90 150 days after such acquisition or the completion of such construction construction, restoration or improvement, improvement and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 250,000,000 at any time outstanding;
(viii) Indebtedness of any Person that becomes a Subsidiary after the Sixth ARCA Effective Date; provided that (A) such Indebtedness exists at the time such Person becomes a Guarantee by the Borrower Subsidiary and is not created in contemplation of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations or in connection with such Person becoming a Subsidiary and (B) other unsecured the Borrower is in compliance on a Pro Forma Basis after giving effect to such Indebtedness with the covenants contained in Sections 6.13 and 6.14 recomputed as of the Borrower last day of the most-recently ended Fiscal Quarter for which financial statements have been delivered or any Subsidiary incurred were required to be delivered pursuant to Section 5.01(a) or (b) prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 time at any time outstandingwhich such Person becomes a Subsidiary;
(ix) Indebtedness owed to of the Borrower assumed by operation of law or otherwise as a direct result of the merger of any Person (including a “Merged Person”) with and into the Borrower (with the Borrower being the surviving entity) in a transaction otherwise permitted under this Agreement; provided that (A) such Indebtedness was Indebtedness of the Merged Person as of the effectiveness of such merger and is not created in contemplation of or in connection with such merger and (B) the Borrower is in compliance on a Pro Forma Basis after giving effect to such Indebtedness with the covenants contained in Sections 6.13 and 6.14 recomputed as of the last day of the most-recently ended Fiscal Quarter for which financial statements have been delivered or were required to be delivered pursuant to Section 5.01(a) or (b) prior to the time of such merger;
(x) Indebtedness of any Wireline Company constituting reimbursement obligations with respect to letters of credit in respect of workers’ compensation claims or self-insurance obligations;
(xi) Indebtedness of any Wireline Company constituting reimbursement obligations with respect to letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred issued in the ordinary course of business; provided that, upon the drawing of such letters of credit or the incurrence of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or incurrence;
(xxii) 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 other IndebtednessIndebtedness for borrowed money), in each case provided in the ordinary course of business;
(xixiii) Indebtedness in respect of Swap Agreements permitted by Section 10.6.6.07;
(xiixiv) Capital Lease Obligations Indebtedness of any Wireline Company arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided, however, that such Indebtedness is extinguished within five Business Days of its incurrence;
(xv) Indebtedness of any Wireline Company arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of any Wireline Company pursuant to any such agreements, in any case incurred in connection with the disposition of any business, assets or any Subsidiary (other than Guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Subsidiary for the purpose of financing such acquisition), so long as the principal amount of such Indebtedness does not exceed the gross proceeds actually received by the Wireline Companies in connection with such disposition;
(xvi) any Earn-out Obligation or obligation in respect of any purchase price adjustment, except to the extent that the contingent consideration relating thereto is not paid within 15 Business Days after the contingency relating thereto is resolved;
(xvii) Permitted Refinancing Indebtedness of any Wireline Company incurred in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than Indebtedness of the Borrower to any Subsidiary or of any Subsidiary to the Borrower or any Subsidiary other Subsidiary) that are was permitted to be incurred prior to under clause (i), (ii), (iii), (iv), (vii), (viii) or (ix) or this clause (xvii) of this paragraph;
(xviii) Permitted Pari Passu Indebtedness; provided that at the Fifth Amendment Effective Date and result from time of incurrence of any arrangement whereby Permitted Pari Passu Indebtedness, (1) the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence Secured Leverage Ratio on a Pro Forma Basis, Basis computed as of the Leverage Ratio as defined in last day of the Existing Credit Agreement most recently-ended Fiscal Quarter for which financial statements have been delivered pursuant to Section 5.01(a) or (b) shall not exceed 2.25 to 1.0 and (2) the ratio then applicable under Section 10.11.(aBorrower shall have delivered a certificate of a Financial Officer to the effect set forth in the preceding clause (1), together with reasonably detailed calculations demonstrating compliance with the preceding clause (1);
(xiiixix) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case Indebtedness incurred in connection with investments or Indebtedness otherwise permitted under this Agreement; andthe financing of insurance premiums in the ordinary course of business;
(xivxx) Guarantees by the Borrower or any Subsidiary of: (A) other Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests Wireline Company in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that (A) no Event of Default has occurred and is continuing or would result therefrom and (B) the Borrower is in compliance on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness with the covenants contained in Sections 6.13 and 6.14 recomputed as of the last day of the most-recently ended Fiscal Quarter for which financial statements have been delivered or were required to be delivered pursuant to Section 5.01(a) or (b) prior to the issuance of such Indebtedness;
(xxi) Indebtedness in connection with Permitted Receivables Financings; provided that the aggregate principal amount of Indebtedness at any time outstanding under this Section 6.01(a)(xxi) shall not exceed $500,000,000; and
(1) Permitted Additional Debt; provided that (A) no Event of Default has occurred and is continuing or would result therefrom and (B) the Borrower is in compliance on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness with the covenants contained in Sections 6.13 and 6.14 recomputed as of the last day of the most-recently ended Fiscal Quarter for which financial statements have been delivered or were required to be delivered pursuant to Section 5.01(a) or (b) prior to the issuance of such Indebtedness and
(2) Permitted Refinancing Indebtedness in respect of Permitted Additional Debt previously incurred under clause (1) (including, without limitation, the Permitted Additional Debt listed on Schedule 6.01) or Indebtedness previously incurred under this clause (2); provided that unsecured Indebtedness in the form of a bridge loan financing (or any “exchange notes” to be issued therefor) that (A) would constitute Permitted Additional Debt (other than with respect to final maturity date and as set forth below) and (B) would constitute Permitted Refinancing Indebtedness in respect of Indebtedness previously incurred under clause (1) or under this clause (2), in the case of either (A) or (B) above but for the inclusion in the documentation governing such Indebtedness of (x) certain negative covenants that are more restrictive than those included in this Agreement and/or (y) a Mandatory Prepayment Provision (it being agreed that any such Preferred Equity Interests issued mandatory prepayment provision shall be deemed not materially more restrictive that the covenants contained in this Agreement), in each case to the extent such provisions are customary for bridge financings (as determined by a Financial Officer in good faith) shall also be permitted under this clause (2) (and any such Indebtedness shall be deemed to constitute Permitted Refinancing Indebtedness for all purposes of this Agreement).
(b) If any Indebtedness is incurred pursuant to clause (viii), (ix), (xx), or (xxii)(1) of paragraph (a) of this Section in an aggregate principal amount exceeding $250,000,000, the Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer to such effect, together with all relevant financial information reasonably requested by the Administrative Agent, including reasonably detailed calculations demonstrating compliance with such covenants (which calculations shall, if made as of the last day of any Fiscal Quarter for which the Borrower has not delivered to Holdings for purposes the Administrative Agent the financial statements and certificate of matching Preferred Equity Interests issued a Financial Officer required to be delivered by Holdings shall Section 5.01(a) or (b) and Section 5.01(c), respectively, be excluded from the accompanied by a reasonably detailed calculation of such amountConsolidated Adjusted EBITDA and Consolidated Cash Interest Expense for the relevant period).
(c) No Subsidiary will issue any Preferred Stock.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1) Indebtedness existing on the Effective Date and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replacedSubordinated Debt;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, that will be fully repaid on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit AgreementEffective Date;
(iv) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary, ; provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent6.04;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, ; provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations6.04;
(Avi) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that (A) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, improvement and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 15,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, date hereof; provided that (A) such Indebtedness exists at the time such Person becomes a Subsidiary and was is not created in contemplation of or in connection with such Person becoming a Subsidiary, Subsidiary and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that B) the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 at any time outstanding;
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;; and
(ix) Indebtedness owed incurred pursuant to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(x) 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 other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such IndebtednessQualified Receivables Transaction.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created or permitted under the Loan Documents, Documents and (ii) Indebtedness the Holdings Senior Discount Debentures; provided that would Holdings may issue additional debt securities having terms and provisions which are, in the reasonable determination of the Required Lenders (which shall be permitted to be created, incurred or assumed by obtained in the Borrower or any Subsidiary under Sections 10.1.(a)(vmanner set forth in Section 9.02(b) and not unreasonably withheld), (ix), (x), (xi) no less favorable to the Lenders than the terms and (xiii) and (iii) Indebtedness in respect provisions of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstandingHoldings Senior Discount Debentures.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue any preferred stock or be or become liable in respect of any obligation (contingent or otherwise) to purchase, redeem, retire, acquire or make any other payment in respect of any shares of capital stock of Holdings, the Borrower or any Subsidiary or any option, warrant or other right to acquire any such shares of capital stock, except Holdings (i) may issue the Holdings Preferred Stock and (ii) may issue additional preferred stock that does not require mandatory cash dividends or redemptions and does not provide for any right on the part of the holder to require redemption or repayment thereof (other than such dividends, redemptions or rights which are expressly subject to compliance with this Agreement), in each case prior to one year after the Maturity Date and (iii) may repurchase stock issued to employee benefit plans to the extent required by law in order to maintain statutory qualifications and as permitted under Section 6.07(a).
(d) The Borrower will not, and will not permit to remain outstanding any Preferred Equity Interests except of its Subsidiaries to, incur any Indebtedness (other than Indebtedness created under the Loan Documents), whether or not such Indebtedness is permitted under this Section 6.01, in reliance upon such Indebtedness constituting "Credit Facilities" (as defined in the case of Holdings or Subordinated Debt Documents). In addition, the Borrower will not, and will not permit any of its Subsidiaries to, designate any Indebtedness (or, other than Indebtedness created under the Loan Documents) as "Designated Senior Debt" (as defined in the case of the Trust Preferred Securities, MHG Capital Trust ISubordinated Debt Documents), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amount.
Appears in 1 contract
Samples: Credit Agreement (J Crew Group Inc)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, create, incur, assume incur or permit to exist any Indebtedness, except:
(i) Indebtedness created of the Borrower and the Restricted Subsidiaries under the Loan DocumentsDocuments (including any Indebtedness incurred pursuant to Section 2.20 or 2.24);
(ii) (1) Indebtedness existing on the Effective Date and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) outstanding on the Effective Date; provided that Indebtedness with an outstanding principal amount in excess of $5,000,000 shall not only be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extendedpermitted under this clause (ii) if set forth on Schedule 6.01, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), and (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replacedPermitted Refinancing thereof;
(iii) Additional Mortgage Guarantees by the Borrower and the Restricted Subsidiaries in respect of Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed of the Borrower or replaced prior any Restricted Subsidiary otherwise permitted hereunder; provided that if the Indebtedness being Guaranteed is subordinated to the Fifth Amendment Effective Date ifLoan Document Obligations, such Guarantee shall be subordinated to the Guarantee of the Loan Document Obligations on terms at least as favorable (as reasonably determined by the date Borrower) taken as a whole, to the Lenders as those contained in the subordination of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit AgreementIndebtedness;
(iv) Indebtedness of the Borrower to or any Restricted Subsidiary and of any Subsidiary owing to the Borrower or any other Subsidiary, Restricted Subsidiary to the extent permitted by Section 6.04; provided (A) that all such Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower owing to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Restricted Subsidiary that is not a Loan Party shall be subordinated to the Loan Document Obligations pursuant to the Intercompany Note or otherwise on terms (A) at least as favorable to the Lenders as those set forth in the form of Intercompany Note or (B) otherwise reasonably satisfactory to the Administrative Agent;
(vA) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness (including Capital Lease Obligations) of the Borrower or any Restricted Subsidiary the proceeds of which are used to finance the acquisition, development, construction, repair, restoration, replacement, maintenance, upgrade, expansion or improvement of fixed or capital assets or other Subsidiary, property (whether real or personal) (whether through the direct purchase of property or the Equity Interest of any person owning such property) or otherwise incurred in respect of Capital Expenditures; provided that such Indebtedness is incurred concurrently with or within 270 days after the applicable acquisition, development, construction, repair, restoration, replacement, maintenance, upgrade, expansion or improvement; provided further that, at the time of any such incurrence of Indebtedness and after giving pro forma effect thereto and to the use of the proceeds thereof, the aggregate principal amount of Indebtedness then outstanding under this clause (v)(A) shall not exceed an amount equal to the greater of (x) $10,000,000 and (y) 10.0% of Consolidated Cash EBITDA for the Test Period most recently ended on or prior to such date of incurrence (measured as of the date such Indebtedness is incurred based upon the financial statements most recently delivered on or prior to such date pursuant to Section 5.01(a) or (b)) and (B) any Permitted Refinancing thereof;
(vi) Indebtedness in respect of Swap Agreements Incurred in the ordinary course of business or consistent with past practice and, in each case, at the time entered into, not for speculative purposes;
(vii) (A) Indebtedness of any Person that becomes a Restricted Subsidiary (or of any Person not previously a Restricted Subsidiary that is merged, consolidated or amalgamated with or into the Indebtedness so Guaranteed is Borrower or any Restricted Subsidiary) after the Effective Date as a result of an Acquisition Transaction or similar Investment permitted by this Section (other than clause (a)(ii) Agreement, or (a)(vii)), (B) Guarantees Indebtedness of any Person that is assumed by the Borrower or any Restricted Subsidiary in connection with an Acquisition Transaction or similar Investment or an acquisition of assets by the Borrower or such Restricted Subsidiary permitted by this Agreement; provided that (1) such Indebtedness is not incurred in contemplation of such Acquisition Transaction or similar Investment or acquisition of assets, (2) other than with respect to a Limited Condition Transaction in which case, compliance with this proviso shall be determined in accordance with Section 1.08, after giving pro forma effect to the assumption of such Indebtedness and the transactions consummated in connection therewith, no Event of Default shall have occurred and be continuing or would result therefrom, (3) such Indebtedness is only the obligation of the Person and/or Person’s subsidiaries that are acquired or that acquire the relevant assets and (4) at the time of such assumption thereof and after giving pro forma effect thereto, the aggregate principal amount of such Indebtedness shall not exceed the amount permitted by Section 6.01(a)(xxvi)(A)(II) as if such Indebtedness was Acquisition Debt, except that the limitation in clause (IV) of Section 6.01(a)(xxvi)(A)(II) shall not apply to Indebtedness assumed pursuant to this Section 6.01(a)(vii), and (B) any Permitted Refinancing thereof;
(viii) Indebtedness in respect of Permitted Receivables Financings; provided that, at the time of incurrence of such Indebtedness (and without giving effect to the incurrence of any such Indebtedness and the use of proceeds thereof), the disposition of the Permitted Receivables Financing Assets pursuant to such Permitted Receivables Financings is permitted by Section 6.05(g)(B);
(ix) Indebtedness representing deferred compensation to current and former officers, directors, managers, employees, consultants or independent contractors of the Borrower (and any Parent Entity) and the Restricted Subsidiaries incurred in the ordinary course of business;
(x) Indebtedness consisting of unsecured promissory notes issued by any Loan Party to current or former officers, managers, consultants, independent contractors, directors and employees or their respective estates, successors, Immediate Family Members or distributees to finance the purchase or redemption of Equity Interests of the Borrower (or any Parent Entity) permitted by Section 6.08(a);
(xi) (A) Indebtedness arising from an agreement providing for indemnification obligations, payment obligations in respect of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. non-compete, consulting or similar arrangement, or obligations in respect of purchase price (including earnouts) or other similar adjustments incurred in an Acquisition Transaction or similar Investment permitted by this Agreement and (C) Guarantees any other Investment or any Disposition, in each case permitted under this Agreement and (B) Indebtedness arising from guaranties, letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments securing the performance pursuant to any such agreement described in clause (vA);
(xii) shall be subordinated Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred (A) in the ordinary course of business to the Obligations current or former directors, officers, employees, members of management, managers and consultants of the applicable Borrower (or any Parent Entity) and/or any Restricted Subsidiary that is and (B) in connection with the Transactions and any Permitted Acquisition or other Investment permitted hereunder;
(xiii) Cash Management Obligations and other Indebtedness in respect of netting services, overdraft protections and similar arrangements and Indebtedness arising from the honoring of a Loan Party to bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, in each case in the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligationsordinary course of business;
(A) Indebtedness of the Borrower or any Subsidiary incurred to finance Restricted Subsidiary; provided that at the acquisition, construction or improvement time of any fixed or capital assets, including Capital Lease Obligations the incurrence thereof and any Indebtedness assumed by after giving pro forma effect thereto and the Borrower or any Subsidiary in connection with use of the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition proceeds thereof, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by then outstanding in reliance on this clause (vixiv) shall not exceed (x) during the Suspension Period, $5,000,000 at any time outstanding6,250,000, and any (y) after the Suspension Period has ended, the greater of (xI) $12,500,000 and (yII) 25.0% of Consolidated Cash EBITDA for the Test Period most recently ended on or prior to such date of incurrence (measured as of the date such Indebtedness permitted by this clause (vi) that is incurred based upon the financial statements most recently delivered (or required to have been delivered) on or after prior to such date pursuant to Section 5.01(a) or (b)) and (B) any Permitted Refinancing thereof;
(xv) Indebtedness consisting of (A) the Fifth Amendment Effective Date shall not be used to finance financing of insurance premiums, (B) take-or-pay obligations contained in supply arrangements or (C) Guarantees of the acquisitionobligations of suppliers, constructioncustomers, improvement franchisees and licensees of the Borrower and the Restricted Subsidiaries, in each case in the ordinary course of business or expansion of hotels not owned consistent with past practice;
(xvi) Indebtedness incurred by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Restricted Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 at any time outstanding;
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
(ix) Indebtedness owed to any Person (including obligations in respect of letters of credit for credit, bank guarantees, warehouse receipts, bankers’ acceptances, or similar instruments issued or created, or related to obligations or liabilities (other than Indebtedness) incurred in the benefit ordinary course of such Person) providing workers’ compensationbusiness or consistent with past practice, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insuranceinsurance or self-insurance or other reimbursement-type obligations regarding workers compensation claims;
(xvii) obligations in respect of self-insurance and obligations in respect of performance, pursuant to reimbursement bid, appeal and surety bonds and performance, bankers acceptance facilities and completion guarantees, leases, government or indemnification trade contracts and similar obligations to such Personprovided by the Borrower or any Restricted Subsidiary or obligations in respect of letters of credit, bank guarantees or similar instruments related thereto, in each case incurred in the ordinary course of businessbusiness or consistent with past practice;
(xxviii) Indebtedness comprising obligations in respect of take or pay contracts entered into the ordinary course of business or consistent with past practice;
(xix) (A) Indebtedness (the Indebtedness incurred pursuant to this Section 6.01(a)(xix), the “Ratio 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 other Indebtedness), in each case Restricted Subsidiary; provided in that at the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations time of the Borrower or any Subsidiary that are incurred prior to incurrence thereof and after giving pro forma effect thereto and the Fifth Amendment Effective Date and result from any arrangement whereby use of the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basisproceeds thereof, the Leverage Ratio as defined aggregate principal amount of Indebtedness outstanding in the Existing Credit Agreement reliance on this clause (xix) shall not exceed the ratio then applicable sum of (1) after the Suspension Period has ended, the Incremental Base Amount available at such time (for the avoidance of doubt, no amount shall be available under this clause (1) during the Suspension Period), plus (2) additional unlimited amounts so long as after giving effect to the incurrence of such Ratio Indebtedness and the use of proceeds thereof, calculated on a pro forma basis as of the Test Period most recently ended on or prior to such date of incurrence (measured as of the date such Indebtedness is incurred based upon the financial statements most recently delivered (or required to have been delivered) on or prior to such date pursuant to Section 10.11.(a5.01(a) or (b);
(xiii) (Abut excluding from the computation thereof the proceeds of such Indebtedness) Guarantees and/or indemnities the Total Net Cash Leverage Ratio would not exceed (other than x) during the Suspension Period, 4.00:1.00, and (y) after the Suspension Period has ended, 6.00:1.00; provided that (I) clauses (a), (b) and (c) of the Required Additional Debt Terms shall have been satisfied, (II) the aggregate principal amount of Ratio Indebtedness that is incurred by or secured by assets of Restricted Subsidiaries that are not Loan Parties, when combined with the aggregate principal amount of Acquisition Debt that has been incurred by Restricted Subsidiaries that are not Loan Parties and is outstanding in respect reliance on clause (ii) of payment the proviso to clause (a)(xxvi)(A), shall not exceed, at the time of principal incurrence thereof and after giving pro forma effect thereto and the use of the proceeds thereof, the greater of (x) $12,500,000 and (y) 25.0% of Consolidated Cash EBITDA for the Test Period most recently ended on or interestprior to such date of incurrence (measured as of the date such Indebtedness is incurred based upon the financial statements most recently delivered (or required to have been delivered) by the Borrower on or any Subsidiary in respect prior to such date pursuant to Section 5.01(a) or (b)) as of capital contributionssuch time, project completions and cost-overruns (III) subject to Section 1.08, no Event of Default shall have occurred and other performance matters be continuing or would result therefrom; and (B) Guarantees and/or indemnities in respect any Permitted Refinancing thereof; provided that the opportunity to commit to provide all or a portion of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or any Indebtedness otherwise permitted under incurred pursuant to this Agreement; and
(xivSection 6.01(a)(xix) Guarantees shall be offered by the Borrower first to the existing Lenders on a pro rata basis and, to the extent that such existing Lenders have not agreed to provide such Indebtedness within five Business Days after receiving such offer from the Borrower (or the Administrative Agent or any Subsidiary of: (A) Indebtedness arranger of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior on behalf of the Borrower), on the terms specified by the Borrower, the Borrower may then offer such opportunity to the Fifth Amendment Effective Date or other Persons (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtednesswhich may include existing Lenders).
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (ixx) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed supported by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness a letter of credit issued in respect of the Convertible Notes in an aggregate a principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor exceed the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal face amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amount.letter of credit;
Appears in 1 contract
Samples: Credit Agreement (GoHealth, Inc.)
Indebtedness; Certain Equity Securities. (a) The Borrower No Credit Agreement Party will, nor will not, and will not it permit any Subsidiary of its Subsidiaries to (nor will it apply to the Bankruptcy Court or the Canadian Court for authority to), create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Credit Documents;
(ii) [Intentionally Omitted];
(1iii) [Intentionally Omitted];
(iv) Third Party Scheduled Existing Indebtedness existing on the Effective Date and set forth in Part C of Schedule 10.1.(a8.18 (for purposes of this clause (iv), (2treating unutilized amounts of overdraft facilities and lines of credit specifically identified on said Part C as outstanding Indebtedness of a like principal amount, even though same remain undrawn on such date) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2)Indebtedness, provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor add guarantors, obligors or security from that was not an obligor with respect which applied to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose)replaced, (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life a decreased Weighted Average Life to Maturity than the Indebtedness being extended, renewed or replaced and (D) shall be subordinated to the Obligations on the same terms (or, from the perspective of the Lenders, better terms), if any, as the Indebtedness being extended, renewed or replaced;
(iiiv) Additional Mortgage intercompany Indebtedness by and extensionsamong the Borrowers and their Subsidiaries permitted pursuant to subclauses (v), renewals (w), (x) and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a(y) of the Existing Credit AgreementSection 10.04(e);
(ivvi) Guarantees (v) by any U.S. Credit Party (other than Holdings) of Indebtedness incurred after the date hereof of any other U.S. Credit Party, (w) by any Canadian Credit Party of Indebtedness incurred after the date hereof of any other Credit Party (other than a German Credit Party), (x)(I) by any U.S. Credit Party (other than Holdings) of Indebtedness incurred after the date hereof of any Foreign Subsidiary of the U.S. Borrower to (other than the Ineligible Subsidiary) and (II) by any Subsidiary and Canadian Credit Party of Indebtedness incurred after the date hereof of any Foreign Subsidiary to of the U.S. Borrower or any (other than the Ineligible Subsidiary, provided (A) that Indebtedness of any Subsidiary that is not a Loan Canadian Credit Party, (y) by any Foreign Subsidiary of the U.S. Borrower (other than the Ineligible Subsidiary, a Canadian Credit Party to or a German Credit Party) of Indebtedness incurred after the date hereof of the U.S. Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. of the U.S. Borrower (other than the Ineligible Subsidiary) and (Bz) the U.S. Credit Parties (other than Holdings) and the Canadian Credit Parties of Indebtedness incurred after the date hereof of any Foreign Subsidiary of the U.S. Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that (other than the Ineligible Subsidiary) which is not organized under the laws of a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other SubsidiaryEuropean country, provided that that, in each case, (A1) the Indebtedness so Guaranteed is permitted by this Section 10.01 (other than clause (a)(ii) or (a)(viiSection 10.01(a)(iv)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C2) Guarantees permitted under this clause (vvi) shall be subordinated to the Obligations of the U.S. Borrower or the applicable Subsidiary that is a Loan Party to Subsidiary, as the same extent and case may be, on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations, (3) the aggregate outstanding principal amount of all Indebtedness of Subsidiaries guaranteed pursuant to subclause (x) of this clause (vi), when added to the aggregate principal amount of all intercompany loans made pursuant to (and in reliance on) Section 10.04(e)(x) and the aggregate amount of cash equity contributions made pursuant to (and in reliance on) Section 10.04(d)(x), shall not exceed U.S.$60,000,000 at any time and shall not exceed U.S.$50,000,000 at the end of any calendar month (provided that if the Mediofactor Facility shall be cancelled and not replaced in whole or in part the two immediately preceding dollar limits shall each be increased by U.S.$20,000,000) (in each case, determined without regard to write-downs or write-offs thereof and, in the case of equity contributions, net of any returns of capital in the form of dividends or distributions actually received in cash in respect of any such Investments (which amount shall not exceed the amount of such Investment at the time such Investment was made)), (4) the aggregate outstanding principal amount of all Indebtedness of Subsidiaries Guaranteed pursuant to subclause (z) of this clause (vi), when added to the aggregate principal amount of all intercompany loans made pursuant to (and in reliance on) Section 10.04(e)(z)(ii) and the aggregate amount of cash equity contributions made pursuant to (and in reliance on) Section 10.04(d)(z), shall not exceed U.S.$10,000,000 at any time (in each case, determined without regard to write-downs or write-offs thereof and, in the case of equity contributions, net of any returns of capital in the form of dividends or distributions actually received in cash in respect of any such Investments (which amount shall not exceed the amount of such Investment at the time such Investment was made)) and (5) no Guarantees may be made or incurred pursuant to subclause (x) of this clause (vi) at any time any Default or any Event of Default is in existence (or would be in existence after giving effect thereto);
(Avii) Indebtedness of the U.S. Borrower or any Subsidiary of its Subsidiaries incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the U.S. Borrower or any Subsidiary of its Subsidiaries in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (plus accrued interest and premium in respect thereof), provided that (A) such Indebtedness is incurred prior to or within 90 120 days after such acquisition or the completion of such construction or improvement, improvement and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 exceed, together with the Remaining Present Value of all leases permitted under Section 10.06, U.S.$15,000,000 at any time outstanding;
(viii) Indebtedness by and among Dutch BV and one or more Foreign Subsidiaries of the U.S. Borrower (Aother than the Ineligible Subsidiary) organized under the laws of a Guarantee European country pursuant to a manual cash pooling arrangement; provided that (a) the German Borrower may borrow but shall not lend pursuant to such manual cash pooling arrangement, (b) Dutch BV shall act as an intermediary for such Foreign Subsidiaries participating in the pool, (c) the pool shall have at all times an aggregate cash position of at least U.S.$0 and (d) at any time, the positive excess of (1) the aggregate amount owing in respect of the pool by Dutch BV to Credit Parties participating in the Borrower pool over (2) the aggregate amount owing in respect of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this pool to Dutch BV by Credit Parties participating in the pool shall not exceed the applicable amount specified in clause (viii)(AII) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date proviso in an aggregate principal amount not exceeding $5,000,000 at any time outstandingSection 10.04(e);
(ix) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(xA) Indebtedness of the U.S. Borrower or any Subsidiary of its Subsidiaries in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations (other than in respect of other Indebtedness)obligations, in each case provided in the ordinary course of businessbusiness and (B) any refinancings, renewals and replacements of any such Indebtedness pursuant to the preceding clause (A) that do not increase the outstanding principal amount thereof (plus accrued interest and premium in respect thereof);
(xi) Indebtedness in respect of any Credit Party pursuant to Swap Agreements or Post Petition Swap Agreements permitted by Section 10.6.10.07;
(xii) Capital Lease Obligations Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its ordinary course of business, whether now owned or hereafter acquired, and thereafter rents or leases provided that such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date Indebtedness is extinguished within five Business Days of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a)its incurrence;
(xiii) reimbursement obligations in respect of letters of credit issued for the account of the U.S. Borrower or any of its Subsidiaries, in an aggregate amount not in excess of U.S.$35,000,000 at any time outstanding;
(Axiv) Guarantees and/or indemnities Permitted Securitizations;
(xv) Indebtedness of any Foreign Subsidiary (other than a Canadian Credit Party) incurred to finance working capital needs of such Foreign Subsidiary, provided that the aggregate principal amount of Indebtedness permitted by this clause (xv), shall not exceed U.S.$20,000,000 at any time outstanding;
(xvi) [Intentionally Omitted];
(xvii) Indebtedness arising from agreements of the U.S. Borrower or a Subsidiary of the U.S. Borrower providing for indemnification in respect connection with the disposition of payment of principal or interest) by the Borrower any business, any assets or any Subsidiary in respect of capital contributionsthe U.S. Borrower, project completions and cost-overruns and other performance matters and (B) than Guarantees and/or indemnities in respect of customary non-recourse carveouts (includingIndebtedness incurred by any Person acquiring all or any portion of such business, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments assets or Indebtedness otherwise permitted under this AgreementSubsidiary for the purpose of financing such acquisition; and
(xivxviii) Guarantees by other Indebtedness of the U.S. Borrower or any Subsidiary of: Credit Party (A) Indebtedness of any joint venture that is not a Subsidiaryother than Holdings), provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the aggregate principal amount of Indebtedness guaranteed except permitted by an amount equal this clause (xviii) shall not exceed U.S.$10,000,000 at any time outstanding; provided that, notwithstanding the foregoing clauses (i) through (xviii), no Credit Agreement Party will permit the Brazilian Credit Parties to (nor will it apply to the Bankruptcy Court or the Canadian Court for authority to permit any accrued but unpaid interest and redemption premium on such Indebtedness.
(bof the Brazilian Credit Parties to) Holdings will not create, incur, assume or permit to exist any Indebtedness except (iwhich, for the purposes of this proviso, shall include trade accounts payable and accrued obligations incurred in the ordinary course of business) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect excess of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) U.S.$25,000,000 at any time outstanding.
outstanding (cexclusive, in any case, of Indebtedness of the type specified in Section 10.01(a)(v)); provided further that, notwithstanding the foregoing clauses (i) Neither Holdings nor through (xviii), no Credit Agreement Party will permit any of the Borrower will, German Credit Parties to (nor will they it apply to the Bankruptcy Court or the Canadian Court for authority to permit any Subsidiary of the German Credit Parties to) create, issue incur, assume or permit to remain outstanding exist any Preferred Equity Interests except Indebtedness (which, for the purposes of this proviso, shall include trade accounts payable) in the case excess of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 of U.S.$25,000,000 at any time outstanding; provided that outstanding (exclusive, in any such Preferred Equity Interests issued by case, of Indebtedness of the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amounttype specified in Sections 10.01(a)(i), (iv) or (v)).
Appears in 1 contract
Samples: Debtor in Possession Credit Agreement (Cooper-Standard Holdings Inc.)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit None of the Company or any Subsidiary to, will create, incur, assume or permit to exist any Indebtedness, except:
(ia) Indebtedness created under the Loan Documents;
(ii) (1b) Indebtedness existing on the Effective Closing Date and set forth on Schedule 6.01 and Refinancing Indebtedness in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one respect of any of the other subsections of this Section 10.1.(a), foregoing;
(c) intercompany Indebtedness among the Company and its Subsidiaries; provided that (3A) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus owing by any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replaced;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary, provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated in right of payment to the Loan Document Obligations pursuant to the Intercompany Note or on terms reasonably satisfactory (x) at least as favorable to the Lenders as those set forth in the form of Intercompany Note attached as Exhibit L or (y) customary for intercompany subordinated Indebtedness or reasonably acceptable to the Administrative Agent;
(v) Guarantees ; provided that a written subordination agreement shall not be required if the Company and its Subsidiaries are not required to evidence such Indebtedness by an Intercompany Note or a promissory note pursuant to the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness terms of the Borrower or any other Subsidiary, provided Collateral and Guarantee Requirement and the aggregate amount of all such Indebtedness that is not subject to a written subordination agreement satisfying the requirements of this clause (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii))shall not exceed $20,000,000 at any time outstanding, (B) Guarantees any such Indebtedness owing to any Loan Party shall be evidenced by an Intercompany Note or a promissory note which shall have been pledged pursuant to the Collateral Agreements to the extent required by the Borrower or Collateral and Guarantee Requirement and (C) any Subsidiary that is a Loan Party of such Indebtedness of owing by any Subsidiary that is not a Loan Party to any Loan Party shall be subject to incurred in compliance with Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations6.04;
(Ad) Guarantees incurred in compliance with Section 6.04;
(e) Permitted First Priority Refinancing Indebtedness, Permitted Second Priority Refinancing Indebtedness, Permitted Unsecured Refinancing Indebtedness and any Refinancing Indebtedness in respect of any of the foregoing;
(f) (i) Indebtedness of the Borrower Company or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations Obligations, purchase money Indebtedness and any Indebtedness assumed by the Borrower Company or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, provided that such Indebtedness is incurred prior to or within 90 270 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, repair, lease or improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), applicable asset; provided that the aggregate principal amount of Indebtedness permitted by this clause (viif) shall not exceed $5,000,000 at any time outstanding;
(viii) outstanding the greater of (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations $15,000,000 and (B) other unsecured 5% of Consolidated EBITDA computed on a Pro Forma Basis for the most recently ended Test Period as of the time such Indebtedness is incurred and (ii) Refinancing Indebtedness in respect of Indebtedness incurred or assumed pursuant to clause (i) above;
(i) Indebtedness of any Person that becomes a Restricted Subsidiary (or of any Person not previously a Restricted Subsidiary that is merged or consolidated with or into a Subsidiary in a transaction permitted hereunder, including the Borrower re-designation of an Unrestricted Subsidiary as a Restricted Subsidiary) after the Closing Date, or Indebtedness of any Person that is assumed by any Subsidiary in connection with an acquisition of assets by such Subsidiary in a Permitted Acquisition; provided that such Indebtedness exists at the time such Person becomes a Restricted Subsidiary (or is so merged or consolidated) or such assets are acquired and is not created in contemplation of or in connection with such Person becoming, as the case may be, a Subsidiary or Restricted Subsidiary (or such merger or consolidation) or such assets being acquired and (ii) Refinancing Indebtedness in respect of Indebtedness assumed pursuant to clause (i) above; provided further that the aggregate principal amount of Indebtedness permitted by this clause (g) shall not exceed at any time outstanding the greater of (A) $25,000,000 and (B) 8% of Consolidated EBITDA computed on a Pro Forma Basis for the most recently ended Test Period as of the time such Indebtedness is incurred;
(h) secured loans, bonds or notes so long as such Indebtedness shall not exceed the sum of (i) an amount equal to the Base Incremental Amount in effect on such date, (ii) an amount equal to the Voluntary Prepayment Amount and (iii) an additional amount that would not cause the Secured Net Leverage Ratio, calculated on a Pro Forma Basis as of the date of incurrence thereof (excluding from such pro forma calculation the Net Proceeds of such Indebtedness and assuming the full amount of any undrawn commitment is drawn but giving effect to any substantially concurrent use of such proceeds including the repayment of Indebtedness), to exceed 3.00 to 1.00 (any Indebtedness incurred in reliance on this clause (h), “Incremental Equivalent Debt”); provided, that (A) the Collateral Release Period has not occurred and is continuing, (B) the Company shall be deemed to have used amounts under clause (iii) above prior to utilization of amounts under clause (i) or (ii) above and (C) the proceeds from any such incurrence under such clauses may be utilized in a single transaction by first calculating the incurrence under clause (iii) above and then calculating the incurrence under clauses (i) and/or (ii) above; provided, further, that any such Incremental Equivalent Debt (1) (x) shall not be secured by any Lien on any asset of the Company or any Subsidiary incurred that does not also secure the Obligations at least on an equal and ratable basis and (y) shall be subject to an Intercreditor Agreement, (2) shall not be Guaranteed by any Subsidiary other than the Loan Parties, (3) shall mature no earlier than the Maturity Date of the Initial Term Loans, (4) shall have a weighted average life to maturity not shorter than the Initial Term Loans, (5) in the case of Incremental Equivalent Debt in the form of bonds or notes, does not provide for any amortization, mandatory prepayment, redemption or repurchase (other than upon a change of control or fundamental change and customary acceleration rights after an event of default and, for the avoidance of doubt, rights to convert or exchange in the case of convertible or exchangeable Indebtedness) prior to the Fifth Amendment Effective Maturity Date of the Initial Term Loans and (6) contains covenants, events of default, guarantees and other terms that are customary for similar Indebtedness in an aggregate principal amount light of then-prevailing market conditions or, when taken as a whole (other than interest rates, rate floors, fees and optional prepayment or redemption terms), are not exceeding $5,000,000 at any time outstandingmore favorable to the lenders or investors providing such Incremental Equivalent Debt, as the case may be, than those set forth in the Loan Documents are with respect to the Lenders (other than covenants or other provisions applicable only to periods after the Maturity Date of the Initial Term Loans);
(ixi) Indebtedness incurred in the ordinary course of business and owed to in respect of Cash Management Services or any Person overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any automated clearinghouse transfers of funds;
(including obligations j) Indebtedness in respect of letters of credit credit, bank guarantees and similar instruments issued for the benefit account of such Personthe Company or any Subsidiary in the ordinary course of business supporting obligations under (i) providing workers’ compensation, health, disability or other employee benefits or propertybenefits, casualty or liability insurance, pursuant to reimbursement unemployment insurance and other social security laws and local state and federal payroll taxes, (ii) obligations in connection with self-insurance arrangements in the ordinary course of business and (iii) bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance and reclamation bonds and obligations of a like nature;
(k) Indebtedness consisting of client advances or indemnification obligations to such Person, in each case incurred deposits received in the ordinary course of business;
(xl) Indebtedness consisting of short-term credit facilities, including, among others, bank guarantees and letters of credit, collectively in an aggregate at any time outstanding not to exceed the greater of (A) $15,000,000 and (B) 5% of Consolidated EBITDA computed on a Pro Forma Basis for the most recently ended Test Period as of the time such credit facility is entered into;
(m) Indebtedness of the Borrower Company or any Subsidiary in respect the form of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations purchase price adjustments (other than including in respect of other Indebtednessworking capital), earnouts, seller notes deferred compensation, indemnification or other arrangements representing acquisition consideration or deferred payments of a similar nature incurred in each case connection with any Permitted Acquisition or other Investments permitted under Section 6.04 or Dispositions permitted under Section 6.05;
(n) Indebtedness of Subsidiaries that are not Loan Parties; provided that no Subsidiary that is not a Loan Party shall incur any Indebtedness under this Section 6.01(n) if, at the time of, and after giving effect to, the incurrence of such Indebtedness (and any substantially simultaneous use of the Specified Permitted Amount) and the use of proceeds thereof, the Specified Permitted Amount would be less than zero;
(o) Indebtedness relating to (i) premium financing arrangements for insurance plans (including property and health insurance plans) and health and welfare benefit plans (including health and workers compensation insurance, employment practices liability insurance and directors and officers insurance), if incurred in the ordinary course of business or (ii) take-or-pay obligations contained in supply agreements, in the ordinary course of business;
(xip) additional Indebtedness in an aggregate amount at any time outstanding not in excess of the greater of (A) $50,000,000 and (B) 17% of Consolidated EBITDA computed on a Pro Forma Basis for the most recently ended Test Period as of the time such Indebtedness is incurred;
(q) Indebtedness in respect of Swap Hedging Agreements permitted by under Section 10.6.6.07;
(xiir) Capital Lease Obligations Indebtedness supported by a Letter of Credit, in a principal amount not to exceed the face amount of such Letter of Credit;
(s) Indebtedness representing deferred compensation or stock-based compensation owed to employees of the Borrower Company and its Subsidiaries incurred in the ordinary course of business or consistent with past practice;
(t) to the extent constituting Indebtedness, Guarantees in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Company and its Subsidiaries;
(u) all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described above;
(v) Indebtedness of the Company or any Subsidiary incurred pursuant to Permitted Receivables Facilities; provided that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement Attributable Receivables Indebtedness thereunder shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the an aggregate amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding;
(w) secured Indebtedness (in addition to any secured Indebtedness described above) incurred to finance ESPCs; provided that (i) the aggregate outstanding principal amount of all Indebtedness permitted solely by this clause (w) shall not at any time exceed $150,000,000; and (ii) at the time of the incurrence, assumption or creation of any such Preferred Equity Interests issued Indebtedness, no Default shall have occurred and be continuing or would result therefrom;
(x) loans and advances made by any Captive Insurance Company to the Borrower Company or any Subsidiary pursuant to Holdings for purposes arrangements consistent with those in effect on the Closing Date; and
(y) other unsecured Indebtedness; provided that (i) [reserved], (ii) at the time of matching Preferred Equity Interests issued by Holdings the incurrence, assumption or creation of any such Indebtedness, (A) no Default shall have occurred and be continuing or would result therefrom, and (B) the Company and its Subsidiaries shall be excluded from in Pro Forma Compliance with the calculation then-applicable financial covenant levels set forth in Section 6.13, (iii) such Indebtedness shall not include any financial covenants that are more restrictive in any respect on the Loan Parties than the financial covenants in this Agreement, (iv) such Indebtedness is not subject to any amortization payments or any mandatory prepayments or sinking fund payments (other than in connection with a change of control, asset sale or event of loss and customary acceleration rights after an event of default) in each case, prior to the date that is six (6) months after the Latest Maturity Date, and (v) such amountIndebtedness shall not mature at any time on or prior to the date that is six (6) months after the Latest Maturity Date.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower None of Xxxxxx USA, the Company or any other Subsidiary will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(ia) Indebtedness created under the Loan Documents;
(iib) the Senior Notes, the Guarantees thereof by Xxxxxx USA, the Company and the other Subsidiary Guarantors, and Refinancing Indebtedness in respect thereof, in an aggregate principal amount not in excess of $500,000,000;
(1c) Indebtedness existing on the Effective Date date hereof and set forth on Schedule 6.01 and Refinancing Indebtedness in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replacedthereof;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(ivd) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to Xxxxxx USA, the Borrower Company or any other Subsidiary; provided that (A) such Indebtedness shall not have been transferred to any Person other than Xxxxxx USA, the Company or any other Subsidiary, provided (AB) any such Indebtedness owing by any Loan Party shall be unsecured and subordinated in right of payment to the Loan Document Obligations on terms customary for intercompany subordinated Indebtedness, as reasonably determined by the Administrative Agent, (C) any such Indebtedness owing to any Loan Party shall be evidenced by a promissory note that shall have been pledged pursuant to the Collateral Agreement and (D) any such Indebtedness of owing by any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to incurred in compliance with Section 10.4. and 6.04;
(Be) Guarantees incurred in compliance with Section 6.04;
(f) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower Company or any other Subsidiary, provided that Subsidiary (Ai) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
(A) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereofObligations, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, improvement and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements Indebtedness does not exceed the principal cost of acquiring, constructing or improving such fixed or capital assets or (ii) assumed in connection with the acquisition of any fixed or capital assets, and Refinancing Indebtedness in respect of any of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon)foregoing; provided, however, provided that the aggregate outstanding principal amount of Indebtedness permitted by this clause (vif) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Dateexceed $10,000,000;
(viig) Indebtedness of any Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Subsidiary in a transaction permitted hereunder) after October 6the date hereof, 2006 but prior to the Fifth Amendment Effective Dateor Indebtedness of any Person that is assumed by any Subsidiary in connection with an acquisition of assets by such Subsidiary in a Permitted Acquisition, provided that (A) such Indebtedness exists at the time such Person becomes a Subsidiary (or is so merged or consolidated) or such assets are acquired and was is not created in contemplation of or in connection with such Person becoming a SubsidiarySubsidiary (or such merger or consolidation) or such assets being acquired and (B) neither Xxxxxx USA nor any Subsidiary (other than such Person or any special purpose merger Subsidiary with which such Person is merged or consolidated or the Person that so assumes such Person’s Indebtedness) shall Guarantee or otherwise become liable for the payment of such Indebtedness, and extensions, renewals and replacements Refinancing Indebtedness in respect of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), foregoing; provided that the aggregate outstanding principal amount of Indebtedness permitted by this clause (viig) shall not exceed $5,000,000 at any time outstandingexceed $10,000,000;
(viiih) (A) a Guarantee by the Borrower Indebtedness owed in respect of any overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any automated clearing-house transfers of funds; provided that such Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness repaid in full within five Business Days of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstandingincurrence thereof;
(ixi) Indebtedness owed to any Person (including obligations in respect of letters of credit credit, bank guarantees and similar instruments issued for the benefit account of such Person) providing workers’ compensation, health, disability Xxxxxx USA or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred any Subsidiary in the ordinary course of business;
business supporting obligations under (xA) Indebtedness of the Borrower or any Subsidiary in respect of performance bondsworkers’ compensation, bid bondsunemployment insurance and other social security laws and (B) bids, trade contracts, leases, statutory obligations, surety and appeal bonds, surety bondsperformance bonds and obligations of a like nature, performance and completion guarantees and similar which obligations (other than in respect of other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under be secured except by any Lien incurred in reliance on Section 10.11.(a6.02(a)(xi);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iiij) Indebtedness in respect of the Convertible Notes letters of credit outstanding on the date hereof and set forth on Schedule 6.01(j) and Refinancing Indebtedness in an respect thereof;
(k) Indebtedness of the Company or any other Subsidiary in the form of purchase price adjustments, earn-outs, non-competition agreements or other arrangements representing acquisition consideration or deferred payments of a similar nature incurred in connection with any Permitted Acquisition or other Investment permitted by Section 6.04; and
(l) Other unsecured Indebtedness of Xxxxxx USA, the Company or any Subsidiary so long as at the time of the incurrence thereof and giving pro forma effect thereto in accordance with Section 1.04(b), (i) no Event of Default shall have occurred and be continuing and (ii) the aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) the Indebtedness outstanding at any time outstanding.
in reliance on this clause (cl) Neither Holdings nor shall not exceed $100,000,000; provided that the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount of Indebtedness of the Subsidiaries that are not exceeding $150,000,000 Loan Parties outstanding at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings in reliance on this clause (l) shall be excluded from the calculation of such amountnot exceed $10,000,000.
Appears in 1 contract
Samples: Credit Agreement (Murphy USA Inc.)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit Neither the Company nor any Subsidiary to, will create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1) Indebtedness existing on the Effective Date and set forth on Schedule 6.01 and Refinancing Indebtedness in Schedule 10.1.(a), respect thereof (2) excluding Refinancing Indebtedness existing on in respect of Indebtedness of any Subsidiary to the Fifth Amendment Effective Date that is permitted by one Company or any other Subsidiary or of the other subsections of this Section 10.1.(aCompany to any Subsidiary), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replaced;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower Company or any other Subsidiary, or of the Company to any Subsidiary; provided that (A) that such Indebtedness of shall not have been transferred to any Subsidiary that is not a Loan Party to Person other than the Borrower Company or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and other Subsidiary, (B) any such Indebtedness of the Borrower to owing by any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Domestic Loan Party shall be subordinated to the Loan Documents Obligations on terms reasonably satisfactory pursuant to the Agent;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii))Intercompany Subordination Agreement, (BC) Guarantees by the Borrower or any Subsidiary that is a such Indebtedness owing to any Domestic Loan Party of shall be evidenced by a promissory note that shall have been pledged in accordance with the Collateral and Guarantee Requirement, (D) any such Indebtedness of owing by any Subsidiary that is not a Domestic Loan Party to any Domestic Loan Party shall be subject to incurred in compliance with Section 10.4. 6.04 and (CE) Guarantees permitted under this clause any such Indebtedness arising from loans or advances made by Domestic Subsidiaries to Foreign Subsidiaries after the Original Effective Date will be owed only to a Domestic Loan Party and will (vunless the Company determines that adverse tax or legal consequences would result therefrom) shall be subordinated to the Obligations of the applicable incurred and owed by a Foreign Subsidiary that is a Loan Party Designated Foreign Subsidiary (it being understood that such Designated Foreign Subsidiary will not be restricted in onlending the proceeds of such loan or advance to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligationsany other Foreign Subsidiary);
(Aiv) Guarantees incurred in compliance with Section 6.04;
(v) Indebtedness of the Borrower Company or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets (it being understood that obligations of the Company or secured by any Subsidiary under any lease existing on the Effective Date that do not constitute Capital Lease Obligations shall not be deemed to constitute Capital Lease Obligations as a Lien on any result of a change in GAAP requiring such assets prior obligations to be classified and accounted for in the acquisition thereof, same way as Capital Lease Obligations); provided that (A) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvementimprovement and the principal amount of such Indebtedness does not exceed the cost of acquiring, constructing or improving such fixed or capital assets and (B) extensionsthe aggregate principal amount of Indebtedness permitted by this clause (v) shall not exceed, renewals at any time outstanding, the greater of (I) $100,000,000 and replacements (II) 10% of Consolidated Tangible Net Worth, determined on the basis of the financial statements most recently delivered pursuant to Section 5.01(a) or (b) at the time any such Indebtedness is incurred;
(vi) Indebtedness of any Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Subsidiary in a transaction permitted hereunder) after the date hereof, or Indebtedness of any Person that is assumed by any Subsidiary in connection with an acquisition of assets by such Subsidiary in a Permitted Acquisition or other acquisition permitted hereunder; provided that (A) such Indebtedness exists at the time such Person becomes a Subsidiary (or is so long as the outstanding principal amount merged or consolidated) or such assets are acquired and is not created in contemplation of or in connection with such extensionsPerson becoming a Subsidiary (or such merger or consolidation) or such assets being acquired, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that B) the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 exceed, at any time outstanding, the greater of (I) $100,000,000 and any Indebtedness permitted by this clause (viII) that is incurred 10% of Consolidated Tangible Net Worth, determined on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as basis of the Fifth Amendment Effective Datefinancial statements most recently delivered pursuant to Section 5.01(a) or (b) at the time any such Indebtedness is incurred, and (C) neither the Company nor any Subsidiary (other than such Person or the Subsidiary with which such Person is merged or consolidated or that so assumes such Person's Indebtedness) shall Guarantee or otherwise become liable for the payment of such Indebtedness;
(vii) Indebtedness owed in respect of any Person that becomes a Subsidiary after October 6overdrafts and related liabilities arising from treasury, 2006 but prior to the Fifth Amendment Effective Date, depository and cash management services or in connection with any automated clearing-house transfers of funds; provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created shall be repaid in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal full within five Business Days of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 at any time outstandingincurrence thereof;
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date Foreign Subsidiaries in an aggregate principal amount not exceeding in excess of $5,000,000 100,000,000 at any time outstanding;
(ix) Permitted Subordinated Indebtedness, provided that, after giving effect to the incurrence thereof, the Company shall be in compliance with the covenants set forth in Section 6.12 and Section 6.13 on a pro forma basis in accordance with Section 1.04(b);
(x) Permitted Senior Unsecured Indebtedness, provided that, after giving effect to the incurrence thereof, the Company shall be in compliance with the covenants set forth in Section 6.12 and Section 6.13 on a pro forma basis in accordance with Section 1.04(b) (provided that, for purposes of pro forma compliance with Section 6.13, the maximum permitted Leverage Ratio shall be deemed to be 2.75 to 1.00);
(xi) Indebtedness owed in respect of Third Party Interests issued by Securitization Vehicles in Securitizations permitted by Section 6.05 and Indebtedness consisting of representations, warranties, covenants and indemnities made by, and repurchase and other obligations of, a Foreign Subsidiary in connection with Securitizations permitted by Section 6.05; provided that such representations, warranties, covenants, indemnities and repurchase and other obligations are of the type customarily included in securitizations of accounts receivable intended to constitute true sales of such accounts receivable to a securitization vehicle;
(xii) other Indebtedness of the Company and any Person Subsidiary Loan Party in an aggregate principal amount not exceeding, at any time outstanding, the greater of (including obligations a) $100,000,000 and (b) 10% of Consolidated Tangible Net Worth, determined on the basis of the financial statements most recently delivered pursuant to Section 5.01(a) or (b) at the time any such Indebtedness is incurred;
(xiii) Indebtedness incurred by Company or any Subsidiary in respect of letters of credit for credit, bank guarantees or similar instruments issued or created in the benefit ordinary course of such Personbusiness (a) providing workers’ compensationin respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance, pursuant insurance or self-insurance or other Indebtedness with respect to reimbursement or indemnification reimbursement-type obligations to such Person, in each case incurred in the ordinary course of business;
regarding workers compensation claims and (xb) Indebtedness of the Borrower or any Subsidiary in respect of performance bonds, bid bonds, appeal bonds, surety bondsbids, performance and guarantees, completion guarantees and similar obligations (other than in respect of other Indebtedness), in each case provided in undertaken by the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower Company or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted stays and appeals of judgments that do not constitute Events of Default under this AgreementArticle VII; and
(xiv) Guarantees by obligations under the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such IndebtednessZandman Employment Agreement.
(b) Holdings Neither the Company nor any Subsidiary will not create, incur, assume issue any preferred stock or permit to exist any Indebtedness except other preferred Equity Interests; provided that (i) Indebtedness created under the Loan DocumentsCompany may issue preferred stock or other preferred Equity Interests that, in each case, do not constitute Disqualified Equity Interests, (ii) Indebtedness that would be permitted any Subsidiary may issue preferred stock or other preferred Equity Interests issued to be created, incurred or assumed and at all times held by the Borrower Company or any a wholly-owned Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstandingSecuritization Vehicles may issue Third Party Interests.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amount.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit Neither the Company nor any Subsidiary to, will create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1) Indebtedness existing on the Second Restatement Effective Date and set forth on Schedule 6.01 and Refinancing Indebtedness in Schedule 10.1.(a), respect thereof (2) excluding Refinancing Indebtedness existing on in respect of Indebtedness of any Subsidiary to the Fifth Amendment Effective Date that is permitted by one Company or any other Subsidiary or of the other subsections of this Section 10.1.(aCompany to any Subsidiary), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replaced;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower Company or any other Subsidiary, or of the Company to any Subsidiary; provided that (A) that such Indebtedness of shall not have been transferred to any Subsidiary that is not a Loan Party to Person other than the Borrower Company or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and other Subsidiary, (B) any such Indebtedness of the Borrower to owing by any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Domestic Loan Party shall be subordinated to the Loan Documents Obligations on terms reasonably satisfactory pursuant to the Agent;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii))Intercompany Subordination Agreement, (BC) Guarantees by the Borrower or any Subsidiary that is a such Indebtedness owing to any Domestic Loan Party of shall be evidenced by a promissory note that shall have been pledged in accordance with the Collateral and Guarantee Requirement, (D) any such Indebtedness of owing by any Subsidiary that is not a Domestic Loan Party to any Domestic Loan Party shall be subject to incurred in compliance with Section 10.4. 6.04 and (CE) Guarantees permitted under this clause any such Indebtedness arising from loans or advances made by Domestic Subsidiaries to Foreign Subsidiaries after the Original Effective Date will be owed only to a Domestic Loan Party and will (vunless the Company determines that adverse tax or legal consequences would result therefrom) shall be subordinated to the Obligations of the applicable incurred and owed by a Foreign Subsidiary that is a Loan Party Designated Foreign Subsidiary (it being understood that such Designated Foreign Subsidiary will not be restricted in onlending the proceeds of such loan or advance to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligationsany other Foreign Subsidiary);
(Aiv) Guarantees incurred in compliance with Section 6.04;
(v) Indebtedness of the Borrower Company or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets (it being understood that obligations of the Company or secured by any Subsidiary under any lease that do not or would not constitute Capital Lease Obligations under GAAP as in effect on the Second Restatement Effective Date shall not be deemed to constitute Capital Lease Obligations as a Lien on any result of a change in GAAP requiring such assets prior obligations to be classified and accounted for in the acquisition thereof, same way as Capital Lease Obligations); provided that (A) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvementimprovement and the principal amount of such Indebtedness does not exceed the cost of acquiring, constructing or improving such fixed or capital assets and (B) extensionsthe aggregate principal amount of Indebtedness permitted by this clause (v) shall not exceed, renewals at any time outstanding, the greater of (I) $100,000,000 and replacements (II) 10% of Consolidated Tangible Net Worth, determined on the basis of the financial statements most recently delivered pursuant to Section 5.01(a) or (b) at the time any such Indebtedness is incurred;
(vi) Indebtedness of any Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Subsidiary in a transaction permitted hereunder) after the Second Restatement Effective Date, or Indebtedness of any Person that is assumed by any Subsidiary in connection with an acquisition of assets by such Subsidiary in a Permitted Acquisition or other acquisition permitted hereunder; provided that (A) such Indebtedness exists at the time such Person becomes a Subsidiary (or is so long as the outstanding principal amount merged or consolidated) or such assets are acquired and is not created in contemplation of or in connection with such extensionsPerson becoming a Subsidiary (or such merger or consolidation) or such assets being acquired, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that B) the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 exceed, at any time outstanding, the greater of (I) $100,000,000 and any Indebtedness permitted by this clause (viII) that is incurred 10% of Consolidated Tangible Net Worth, determined on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as basis of the Fifth Amendment Effective Datefinancial statements most recently delivered pursuant to Section 5.01(a) or (b) at the time any such Indebtedness is incurred, and (C) neither the Company nor any Subsidiary (other than such Person or the Subsidiary with which such Person is merged or consolidated or that so assumes such Person's Indebtedness) shall Guarantee or otherwise become liable for the payment of such Indebtedness;
(vii) Indebtedness owed in respect of any Person that becomes a Subsidiary after October 6overdrafts and related liabilities arising from treasury, 2006 but prior to the Fifth Amendment Effective Date, depository and cash management services or in connection with any automated clearing-house transfers of funds; provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created shall be repaid in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal full within five Business Days of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 at any time outstandingincurrence thereof;
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date Foreign Subsidiaries in an aggregate principal amount not exceeding in excess of $5,000,000 100,000,000 at any time outstanding;
(ix) Permitted Subordinated Indebtedness, provided that, after giving effect to the incurrence thereof, the Company shall be in compliance with the covenants set forth in Section 6.12 and Section 6.13 on a pro forma basis in accordance with Section 1.04(b);
(x) Permitted Senior Unsecured Indebtedness, provided that, after giving effect to the incurrence thereof, the Company shall be in compliance with the covenants set forth in Section 6.12 and Section 6.13 on a pro forma basis in accordance with Section 1.04(b) (provided that, for purposes of pro forma compliance with Section 6.13, the maximum permitted Leverage Ratio shall be deemed to be 2.75 to 1.00);
(xi) Indebtedness owed in respect of Third Party Interests issued by Securitization Vehicles in Securitizations permitted by Section 6.05 and Indebtedness consisting of representations, warranties, covenants and indemnities made by, and repurchase and other obligations of, a Foreign Subsidiary in connection with Securitizations permitted by Section 6.05; provided that such representations, warranties, covenants, indemnities and repurchase and other obligations are of the type customarily included in securitizations of accounts receivable intended to constitute true sales of such accounts receivable to a securitization vehicle;
(xii) other Indebtedness of the Company and any Person Subsidiary Loan Party in an aggregate principal amount not exceeding, at any time outstanding, the greater of (including obligations a) $100,000,000 and (b) 10% of Consolidated Tangible Net Worth, determined on the basis of the financial statements most recently delivered pursuant to Section 5.01(a) or (b) at the time any such Indebtedness is incurred; and
(xiii) Indebtedness incurred by Company or any Subsidiary in respect of letters of credit for credit, bank guarantees or similar instruments issued or created in the benefit ordinary course of such Personbusiness (a) providing workers’ compensationin respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance, pursuant insurance or self-insurance or other Indebtedness with respect to reimbursement or indemnification reimbursement-type obligations to such Person, in each case incurred in the ordinary course of business;
regarding workers compensation claims and (xb) Indebtedness of the Borrower or any Subsidiary in respect of performance bonds, bid bonds, appeal bonds, surety bondsbids, performance and guarantees, completion guarantees and similar obligations (other than in respect of other Indebtedness), in each case provided in undertaken by the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower Company or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted stays and appeals of judgments that do not constitute Events of Default under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such IndebtednessArticle VII.
(b) Holdings Neither the Company nor any Subsidiary will not create, incur, assume issue any preferred stock or permit to exist any Indebtedness except other preferred Equity Interests; provided that (i) Indebtedness created under the Loan DocumentsCompany may issue preferred stock or other preferred Equity Interests that, in each case, do not constitute Disqualified Equity Interests, (ii) Indebtedness that would be permitted any Subsidiary may issue preferred stock or other preferred Equity Interests issued to be created, incurred or assumed and at all times held by the Borrower Company or any a wholly-owned Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstandingSecuritization Vehicles may issue Third Party Interests.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amount.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1) Indebtedness existing on the Effective Date and set forth Senior Notes in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a aggregate principal amount that exceeds not to exceed, after giving effect to any repayment of Indebtedness which occurs concurrently with the principal amount issuance of the Indebtedness being extendedsuch Senior Notes, renewed or replaced (plus at any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replacedone time $2,500,000,000;
(iii) Additional Mortgage Indebtedness of Borrower to any Restricted Subsidiary and extensions, renewals and replacements thereof, in each case incurred, extended, renewed of any Restricted Subsidiary to Borrower or replaced prior any other Restricted Subsidiary that is subordinated to the Fifth Amendment Effective Date if, on Obligations (other than Hedging Obligations) in form and substance reasonably satisfactory to the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit AgreementAdministrative Agent;
(iv) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary, provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that in each case existing as of the date hereof and set forth in Schedule 7.1 (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(viia)(iv)(A)), ; and (B) other Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of Borrower or any Subsidiary other Subsidiary; provided that is a with respect to clause (B), the Guarantees by Borrower or any other Loan Party of Indebtedness of any Unrestricted Subsidiary that is shall not a Loan Party exceed at any time $35,000,000 in the aggregate and shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations7.4;
(A) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(viiv) Indebtedness of any Person that becomes a Restricted Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, ; provided that (A) such Indebtedness exists at the time such Person becomes a Restricted Subsidiary and was is not created in contemplation of or in connection with such Person becoming a Subsidiary, Restricted Subsidiary and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that B) the aggregate principal amount of Indebtedness permitted by this clause (viiSection 7.1(a)(v) and Section 7.1(a)(xi) shall not exceed $5,000,000 100,000,000 at any time outstanding;
(vi) Indebtedness of Borrower and its Restricted Subsidiaries secured by Liens permitted by Section 7.2(e) up to but not exceeding $35,000,000 at any one time outstanding;
(vii) Capital Lease Obligations and Indebtedness relating to Approved Sale and Leaseback transactions of Borrower and its Restricted Subsidiaries up to but not exceeding $165,000,000 at any one time outstanding;
(viii) [intentionally omitted];
(Aix) Indebtedness consisting of performance, bid and customs bonds, letters of credit, statutory obligations, surety and appeal bonds and other obligations of a Guarantee by like nature incurred in the Borrower ordinary course of Indebtedness businesses in connection with new, renewed or extended charter or leases of Holdings permitted under Section 10.1.(b)(iii)rigs entered into after the Effective Date, provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (Bii) other unsecured Indebtedness incurred in the ordinary course of the business with respect to insurance premium financing for insurance being acquired by Borrower or any Subsidiary incurred prior under customary terms and conditions;
(x) until the Spin-Off Date, any Indebtedness, including a Guarantee by Borrower, relating to the Fifth Amendment Effective Date Lone Pine Credit Agreement; and
(xi) other Indebtedness of Borrower and its Restricted Subsidiaries in an aggregate principal amount not exceeding $5,000,000 100,000,000 at any time outstanding.
(b) Borrower will not, and will not permit any Restricted Subsidiary to, issue any Preferred Equity Interest.
(c) Borrower will not permit any of the Unrestricted Subsidiaries to create, incur or suffer to exist any Indebtedness except:
(i) Non-Recourse Debt in an aggregate principal amount not to exceed $500,000,000 at any time outstanding;
(ixii) Indebtedness owed to any Person (including obligations in respect of letters letter of credit for the benefit or bank guarantee reimbursement obligations of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant Unrestricted Subsidiary in an amount not to reimbursement or indemnification obligations to such Person, in each case incurred exceed $35,000,000 in the ordinary course aggregate at any one time outstanding, provided that stated principal amount of business;
(x) Indebtedness of the Borrower or any Subsidiary in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance all such reimbursement obligations so Guaranteed shall be considered Investments and completion guarantees and similar obligations (other than in respect of other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior be subject to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful aggregate limitation on Investments in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable Unrestricted Subsidiaries imposed under Section 10.11.(a7.4(h);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiviii) Guarantees by until the Borrower or Spin-Off Date, any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior relating to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such IndebtednessLone Pine Credit Agreement.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amount.
Appears in 1 contract
Samples: Credit Agreement (Forest Oil Corp)
Indebtedness; Certain Equity Securities. (a) The Borrower Company will not, and will not permit any Subsidiary to, create, incur, assume or suffer or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents, and any Indebtedness incurred to refinance any such Indebtedness or under a credit facility that replaces in whole or in part the credit facility established hereby, but only to the extent the Commitments are permanently reduced by the amount so refinanced or by the amount of such replacement facility, as the case may be;
(ii) up to $15,000,000 aggregate principal amount of Series B Notes (1as defined in the Securities Purchase Agreement) issued to finance one or more acquisitions permitted under the terms of this Agreement;
(iii) Indebtedness existing on the Effective Date and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a)6.01, and (3) any extensions, renewals and or replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds extent the principal amount of such Indebtedness is not increased, the final maturity of such Indebtedness is not earlier than that of the Indebtedness being extendedreplaced, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter the weighted average life than the to maturity of such Indebtedness being extendedis not decreased, renewed or replaced;
(iii) Additional Mortgage Indebtedness and extensionssuch Indebtedness, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior if subordinated to the Fifth Amendment Effective Date ifObligations, remains so subordinated on terms not less favorable to the date Lenders and the original obligors in respect of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, Indebtedness remain the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreementonly obligors thereon;
(iv) obligations of the Company in respect of the Industrial Revenue Bonds;
(v) Indebtedness under Hedging Agreements entered into to protect the Company and its Subsidiaries from interest or currency exchange rate risks to which they are exposed in the ordinary course of their businesses and not for speculative purposes;
(vi) Indebtedness of the Borrower Company or any of its Subsidiaries in connection with trade or standby letters of credit or performance, surety or appeal bonds issued in the ordinary course of business;
(vii) Indebtedness of any Person acquired by the Company or any Subsidiary in a transaction permitted hereunder and existing at the time of such acquisition; provided that (A) such Indebtedness shall not have been incurred in contemplation of such acquisition and (B) neither the Company nor any Subsidiary (other than such Person and its subsidiaries) shall be directly or indirectly liable in respect of such Indebtedness;
(viii) Indebtedness of the Company to any Subsidiary and of any Subsidiary to the Borrower Company or any other Subsidiary, ; provided that (A) that no such Indebtedness shall be transferred to any Person other than the Company or a Subsidiary and (B) any such Indebtedness of any Subsidiary that is not a Loan Party to the Borrower Company or any US Subsidiary that is a Loan Party shall be subject to have been incurred in compliance with Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent6.01;
(vix) Guarantees by the Borrower Company of Indebtedness or other obligations of any Subsidiary and by any Subsidiary of Indebtedness or other obligations of the Borrower Company or any other Subsidiary, ; provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower Company or any US Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations6.06;
(Ax) Indebtedness of the Borrower Company or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations Obligations, and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition extensions, renewals and replacements of any such assets Indebtedness that do not increase the outstanding principal amount thereof or secured by a Lien on any such assets prior to the acquisition result in an earlier maturity date or decreased weighted average life thereof, ; provided that (A) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of any such Indebtedness does not exceed 90% of the purchase price or the cost of construction or improvement of the related assets and (C) the aggregate principal amount of all Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (viix) shall not exceed $5,000,000 at any time outstanding;
(viiixi) Indebtedness that is incurred and used to repurchase all of the outstanding Series B Notes (Aas defined in the Securities Purchase Agreement) a Guarantee by or to redeem all of the Borrower outstanding Series C-2 Preferred Shares pursuant to obligations of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and Company existing on the same terms as date hereof to effect such repurchases or redemptions; provided that the final maturity of such Indebtedness is not earlier than the maturity date of, or the mandatory repurchase date for, the Indebtedness so Guaranteed or preferred shares repurchased, the weighted average life to maturity of such Indebtedness is subordinated to not less than that of the Obligations Indebtedness or preferred shares repurchased and the original obligors in respect of such Indebtedness remain the only obligors thereon; and
(Bxii) other unsecured Indebtedness of the Borrower Company incurred without violation of the Securities Purchase Agreement or any other agreement to which the Company or any Subsidiary incurred prior to is party; provided that the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
(ix) of all Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(x) 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 other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
this clause (xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) 5,000,000 at any time outstanding.
(cb) Neither Holdings nor The Company will not issue any preferred stock or other preferred Equity Interests other than Series C-1 Preferred Shares and the Borrower willSeries C-2 Preferred Shares in an aggregate stated amount not greater than $15,000,000, nor and will they not permit any Subsidiary to, to issue or permit to remain outstanding any Preferred Equity Interests except other than to the Company or another Subsidiary, or other than in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust Iaccordance with Section 6.05(c), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amount.
Appears in 1 contract
Samples: Credit Agreement (Labone Inc/)
Indebtedness; Certain Equity Securities. (a) The Neither the Borrower will not, and will not permit nor any Subsidiary to, will create, incur, assume or permit to exist any Indebtedness, except:
(ia) Indebtedness created under the Loan Documents;
(ii) (1b) Indebtedness existing on the Effective Date date hereof and set forth in on Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a)6.01, and (3) extensions, renewals and replacements of any such Refinancing Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replacedthereof;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(ivc) Indebtedness of the Borrower to any Subsidiary and of or any Subsidiary to the Borrower or any Subsidiary; provided that (i) such Indebtedness shall not have been transferred to any Person other than the Borrower or any Subsidiary, provided (Aii) any such Indebtedness owing by any Loan Party to a Subsidiary that is not a Loan Party shall be unsecured and subordinated in right of payment to the Loan Document Obligations pursuant to the Intercompany Subordination Agreement, (iii) any such Indebtedness of owing to any Loan Party that is evidenced by a promissory note shall have been pledged pursuant to the Collateral Agreement and (iv) any such Indebtedness owing by any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party (other than Specified Intercompany Indebtedness) shall be subject to incurred in compliance with Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent6.04;
(vd) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this incurred in compliance with Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations6.04;
(Ae) Indebtedness of the Borrower or any Subsidiary (i) incurred to finance the acquisition, construction or improvement of any fixed or capital assetsassets or Intellectual Property, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereofObligations, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, improvement and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements Indebtedness does not exceed the principal cost of acquiring, constructing or improving such fixed or capital assets or Intellectual Property, or (ii) assumed in connection with the acquisition of any fixed or capital assets or Intellectual Property, and Refinancing Indebtedness in respect of any of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon)foregoing; provided, however, provided that the aggregate principal amount of Indebtedness permitted by this clause (vie) shall not exceed $5,000,000 10,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(viif) Indebtedness of any Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Subsidiary in a transaction permitted hereunder) after October 6the date hereof, 2006 but prior to or Indebtedness of any Person that is assumed by the Fifth Amendment Effective Date, Borrower or any Subsidiary in connection with an acquisition of assets by the Borrower or such Subsidiary in a Permitted Acquisition or other Investment permitted by Section 6.04(n); provided that (i) such Indebtedness exists at the time such Person becomes a Subsidiary (or is so merged or consolidated) or such assets are acquired and was is not created in contemplation of or in connection with such Person becoming a SubsidiarySubsidiary (or such merger or consolidation) or such assets being acquired and (ii) neither the Borrower nor any Subsidiary (other than such Person or the Person with which such Person is merged or consolidated or that so assumes such Person’s Indebtedness) shall Guarantee or otherwise become liable for the payment of such Indebtedness, and extensions, renewals and replacements Refinancing Indebtedness in respect of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), foregoing; provided that the aggregate principal amount of Indebtedness permitted by this clause (viif) shall not exceed $5,000,000 10,000,000 at any time outstanding;
(viiig) (A) a Guarantee by the Borrower Indebtedness owed in respect of any overdrafts and related liabilities arising from treasury, depository, credit-card and cash management services or in connection with any automated clearing house transfers of funds; provided that such Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to repaid in full before the same extent shall become delinquent;
(h) Indebtedness in respect of letters of credit, bank guarantees and on similar instruments issued for the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness account of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
(ix) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of businessbusiness supporting obligations under (i) workers’ compensation, unemployment insurance and other social security laws and (ii) bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and obligations of a like nature;
(xi) Indebtedness of the Borrower or any Subsidiary in respect the form of performance bondspurchase price adjustments, bid bondsearn-outs, appeal bonds, surety bonds, performance and completion guarantees and non-competition agreements or other arrangements representing acquisition consideration or deferred payments of a similar obligations (nature incurred in connection with any Permitted Acquisition or other than in respect of other Indebtedness), in each case provided in the ordinary course of businessInvestment permitted by Section 6.04;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (Aj) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes Foreign Subsidiaries in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) 10,000,000 at any time outstanding.;
(ci) Neither Holdings nor Permitted Convertible Notes, provided that (A) at the time of the incurrence thereof and after giving effect thereto, (1) no Default or Event of Default shall have occurred and be continuing and (2) the Liquidity shall not be less than $10,000,000 and (B) the Borrower will, nor will they permit any Subsidiary to, issue or permit shall have delivered to remain outstanding any Preferred Equity Interests except in the case Administrative Agent a certificate of Holdings or a Financial Officer of the Borrower certifying that (or1) all the requirements set forth in this clause (k) have been satisfied with respect to such incurrence of Permitted Convertible Notes and (2) based on the information then available to the Borrower, the Borrower in good faith expects that Liquidity will not be less than $10,000,000 at any time during the case six month period immediately following such incurrence, together with a calculation in support of the Trust Preferred Securitiessatisfaction of the requirement referred to in clause (A)(2) above; and (ii) any Refinancing Indebtedness in respect thereof; provided that the aggregate principal amount of Indebtedness permitted by this clause (k) may not exceed $150,000,000 at any time outstanding;
(i) Permitted Subordinated Notes, MHG Capital Trust I)provided that at the time of the incurrence thereof and after giving effect thereto, Preferred Equity Interests (A) the requirements of Section 1.05 shall be satisfied and (B) no Default or Event of Default shall have occurred and be continuing; and (ii) any Refinancing Indebtedness in respect thereof; provided that are Qualified Equity Interests the aggregate principal amount of Indebtedness permitted by this clause (l) may not exceed $300,000,000 at any time outstanding; and
(m) other Indebtedness in an aggregate principal amount not exceeding $150,000,000 10,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amount.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The None of Holdings, the Borrower will not, and will not permit or any Subsidiary to, will create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1) Indebtedness existing on the Effective Date date hereof and set forth on Schedule 6.01 and Refinancing Indebtedness in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replacedthereof;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to Holdings, the Borrower or any other Subsidiary, ; provided that (A) that such Indebtedness of shall not have been transferred to any Person other than Holdings, the Borrower or any Subsidiary, (B) any such Indebtedness owing by any Loan Party shall be subordinated to the Loan Documents Obligations pursuant to the Intercompany Subordination Agreement, (C) any such Indebtedness owing to any Loan Party shall be evidenced by the Global Intercompany Note, which shall have been pledged pursuant to the Collateral Agreement, and (D) any such Indebtedness owing by any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to incurred in compliance with Section 10.4. and 6.04;
(Biv) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the AgentGuarantees incurred in compliance with Section 6.04;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
(A) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, assets; provided that (A) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvementimprovement and the principal amount of such Indebtedness does not exceed the cost of acquiring, constructing or improving such fixed or capital assets and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding aggregate principal amount of such extensions, renewals and replacements does Indebtedness permitted by this clause (v) shall not exceed $75,000,000 at any time outstanding;
(vi) Indebtedness of any Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Subsidiary in a transaction permitted hereunder) after the principal date hereof, or Indebtedness of any Person that is assumed by any Subsidiary in connection with an acquisition of assets by such Subsidiary in a Permitted Acquisition or other acquisition permitted hereunder; provided that (A) such Indebtedness exists at the Indebtedness time such Person becomes a Subsidiary (or is so merged or consolidated) or such assets are acquired and is not created in contemplation of or in connection with such Person becoming a Subsidiary (or such merger or consolidation) or such assets being extendedacquired, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that B) the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 75,000,000 at any time outstandingoutstanding and (C) at the time of the acquisition or assumption of any such Indebtedness, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as shall have delivered to the Administrative Agent a certificate executed by a Financial Officer of the Fifth Amendment Effective DateBorrower demonstrating compliance, on a pro forma basis in accordance with Section 1.04(b), with the covenants set forth in Sections 6.11 and 6.12;
(vii) Indebtedness owed in respect of any Person that becomes a Subsidiary after October 6overdrafts and related liabilities arising from treasury, 2006 but prior to the Fifth Amendment Effective Date, depository and cash management services or in connection with any automated clearing-house transfers of funds; provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created shall be repaid in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal full within five Business Days of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 at any time outstandingincurrence thereof;
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date Foreign Subsidiaries in an aggregate principal amount not exceeding in excess of $5,000,000 50,000,000 at any time outstanding;
(ix) Permitted Subordinated Indebtedness, provided that, after giving effect to the incurrence thereof, Holdings and the Borrower shall be in compliance with the covenants set forth in Sections 6.11 and 6.12 on a pro forma basis in accordance with Section 1.04(b) and with the other covenants set forth in this Article VI after giving effect thereto;
(x) other Indebtedness owed of Holdings, the Borrower or any Subsidiary in an aggregate principal amount not exceeding $150,000,000, at any time outstanding; provided that (A) no Default or Event of Default then exists or would result therefrom, (B) no more than $25,000,000 in the aggregate of such Indebtedness at any time outstanding may be incurred by Subsidiaries pursuant to this clause (x), (C) such Indebtedness shall be unsecured except to the extent permitted pursuant to Section 6.02(i) and (D) no such Indebtedness shall mature or require any Person amortization payment to be made prior to the date that is 91 days after the Maturity Date;
(including obligations xi) Indebtedness in respect of letters of credit credit, bank guarantees and similar instruments issued for the benefit account of such Person) providing workers’ compensationHoldings, health, disability the Borrower or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred any Subsidiary in the ordinary course of businessbusiness supporting obligations under (A) workers’ compensation, unemployment insurance and other social security laws and (B) bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and obligations of a like nature;
(xxii) Indebtedness of the Borrower or any Subsidiary in respect the form of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and earn-outs or deferred payments of a similar obligations (other than nature incurred in respect of other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or connection with any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property Permitted Acquisition or other property that it intends Investment permitted pursuant to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);6.04; and
(xiii) other unsecured Indebtedness of Holdings or the Borrower, provided that (A) Guarantees and/or indemnities (other than in respect no Default or Event of payment of principal Default then exists or interest) by the Borrower or any Subsidiary in respect of capital contributionswould result therefrom, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or such Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees is not at any time guaranteed by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a SubsidiaryLoan Party, provided that (C) the Leverage Ratio, calculated on a pro forma basis after giving effect to such Guarantee Indebtedness, is less than 1.50 to 1.00 and (D) no such Indebtedness are in effect shall mature or require any amortization payment to be made prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (date that is 91 days after the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such IndebtednessMaturity Date.
(b) Holdings will shall not create, incur, assume issue any preferred stock or permit to exist any Indebtedness except other preferred Equity Interests; provided that (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred Holdings may issue preferred stock or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred other preferred Equity Interests except in the case of Holdings or the Borrower (orthat, in the case of the Trust Preferred Securitieseach case, MHG Capital Trust I), Preferred do not constitute Disqualified Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amountInterests.
Appears in 1 contract
Samples: Credit Agreement (Fairchild Semiconductor International Inc)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit Neither the Company nor any Subsidiary to, will create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1) Indebtedness existing on the Effective Date date hereof and set forth on Schedule 6.01 and Refinancing Indebtedness in Schedule 10.1.(a), respect thereof (2) excluding Refinancing Indebtedness existing on in respect of Indebtedness of any Subsidiary to the Fifth Amendment Effective Date that is permitted by one Company or any other Subsidiary or of the other subsections of this Section 10.1.(aCompany to any Subsidiary), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replaced;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower Company or any other Subsidiary, or of the Company to any Subsidiary; provided that (A) that such Indebtedness of shall not have been transferred to any Subsidiary that is not a Loan Party to Person other than the Borrower Company or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and other Subsidiary, (B) any such Indebtedness of the Borrower to owing by any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Domestic Loan Party shall be subordinated to the Loan Documents Obligations on terms reasonably satisfactory pursuant to the Agent;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii))Intercompany Subordination Agreement, (BC) Guarantees by the Borrower or any Subsidiary that is a such Indebtedness owing to any Domestic Loan Party of shall be evidenced by a promissory note that shall have been pledged in accordance with the Collateral and Guarantee Requirement, (D) any such Indebtedness of owing by any Subsidiary that is not a Domestic Loan Party to any Domestic Loan Party shall be subject to incurred in compliance with Section 10.4. 6.04 and (CE) Guarantees permitted under this clause any such Indebtedness arising from loans or advances made by Domestic Subsidiaries to Foreign Subsidiaries after the Effective Date will be owed only to a Domestic Loan Party and will (vunless the Company determines that adverse tax or legal consequences would result therefrom) shall be subordinated to the Obligations of the applicable incurred and owed by a Foreign Subsidiary that is a Loan Party Designated Foreign Subsidiary (it being understood that such Designated Foreign Subsidiary will not be restricted in onlending the proceeds of such loan or advance to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligationsany other Foreign Subsidiary);
(Aiv) Guarantees incurred in compliance with Section 6.04;
(v) Indebtedness of the Borrower Company or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets (it being understood that obligations of the Company or secured by any Subsidiary under any lease existing on the Effective Date which do not constitute Capital Lease Obligations shall not be deemed to constitute Capital Lease Obligations as a Lien on any result of a change in GAAP requiring such assets prior obligations to be classified and accounted for in the acquisition thereof, same way as Capital Lease Obligations); provided that (A) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvementimprovement and the principal amount of such Indebtedness does not exceed the cost of acquiring, constructing or improving such fixed or capital assets and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 exceed, at any time outstanding, the greater of (I) $100,000,000 and any Indebtedness permitted by this clause (viII) that is incurred 10% of Consolidated Tangible Net Worth, determined on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as basis of the Fifth Amendment Effective Datefinancial statements most recently delivered pursuant to Section 5.01(a) or (b) at the time any such Indebtedness is incurred;
(viivi) Indebtedness of any Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Subsidiary in a transaction permitted hereunder) after October 6the date hereof, 2006 but prior to the Fifth Amendment Effective Date, or Indebtedness of any Person that is assumed by any Subsidiary in connection with an acquisition of assets by such Subsidiary in a Permitted Acquisition or other acquisition permitted hereunder; provided that (A) such Indebtedness exists at the time such Person becomes a Subsidiary (or is so merged or consolidated) or such assets are acquired and was is not created in contemplation of or in connection with such Person becoming a SubsidiarySubsidiary (or such merger or consolidation) or such assets being acquired, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that B) the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 exceed, at any time outstanding, the greater of (I) $100,000,000 and (II) 10% of Consolidated Tangible Net Worth, determined on the basis of the financial statements most recently delivered pursuant to Section 5.01(a) or (b) at the time any such Indebtedness is incurred, and (C) neither the Company nor any Subsidiary (other than such Person or the Subsidiary with which such Person is merged or consolidated or that so assumes such Person’s Indebtedness) shall Guarantee or otherwise become liable for the payment of such Indebtedness;
(vii) Indebtedness owed in respect of any overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any automated clearing-house transfers of funds; provided that such Indebtedness shall be repaid in full within five Business Days of the incurrence thereof;
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date Foreign Subsidiaries in an aggregate principal amount not exceeding in excess of $5,000,000 100,000,000 at any time outstanding;
(ix) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensationPermitted Subordinated Indebtedness, healthprovided that, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(x) 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 other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior after giving effect to the Fifth Amendment Effective Date incurrence thereof, the Company shall be in compliance with the covenants set forth in Sections 6.12 and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence 6.13 on a Pro Forma Basis, the Leverage Ratio as defined pro forma basis in the Existing Credit Agreement shall not exceed the ratio then applicable under accordance with Section 10.11.(a1.04(b);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amount.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Neither Holdings nor the Borrower will, nor will not, and will not they permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) the Senior Subordinated Notes;
(1iii) the Existing Subordinated Notes, to the extent not repurchased pursuant to the Debt Tender Offers;
(iv) Indebtedness existing on the Effective Date and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), 6.01 and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2)Indebtedness, provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (CB) shall not have an earlier maturity date or shorter a decreased weighted average life than the Indebtedness being extended, renewed or replaced;
, (iiiC) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary, provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms (or, from a Lender's perspective, better terms) as the Indebtedness so Guaranteed is subordinated to the Obligations;
(A) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced and (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount D) there is no obligor of such Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 at any time outstanding;
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
(ix) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
either (x) an obligor of such 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 other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (By) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be otherwise permitted to be created, incurred or assumed incur such Indebtedness by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect another clause of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amount.this Section 6.01;
Appears in 1 contract
Samples: Credit Agreement (Select Specialty Hospital Topeka Inc)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1) Indebtedness existing on the Effective Date and set forth in Schedule 10.1.(a), (2) 6.01 and Refinancing Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replacedthereof;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower or any other Restricted Subsidiary, ; provided that (A) that such Indebtedness of shall not have been transferred to any Subsidiary that is not a Loan Party to Person other than the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and Restricted Subsidiary, (B) any such Indebtedness of the Borrower to owing by any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any a Restricted Subsidiary that is not a Loan Party shall be unsecured and subordinated in right of payment to the Secured Obligations on terms reasonably satisfactory customary for intercompany subordinated Indebtedness pursuant to the AgentIntercompany Subordination Agreement and (C) any such Indebtedness shall be incurred in compliance with Section 6.04;
(iv) Guarantees incurred in compliance with Section 6.04;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
(A) Indebtedness of the Borrower or any Restricted Subsidiary (A) incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereofSynthetic Lease Obligations, provided that such Indebtedness is incurred prior to or within 90 180 days after such acquisition or the completion of such construction or improvement, improvement and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements Indebtedness does not exceed the principal cost of acquiring, constructing or improving such fixed or capital assets or (B) assumed in connection with the acquisition of any fixed or capital assets, and Refinancing Indebtedness in respect of any of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), foregoing; provided that the aggregate principal amount of Indebtedness permitted by this clause (viiv) shall not exceed $5,000,000 40,000,000 at any time outstanding;
(vi) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit and checking accounts, in each case, in the ordinary course of business;
(vii) Indebtedness in respect of letters of credit, bank guarantees and similar instruments issued for the account of the Borrower or any Restricted Subsidiary in the ordinary course of business supporting obligations under workers’ compensation, unemployment insurance and other social security laws;
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Restricted Subsidiary in the form of bona fide purchase price adjustments or earn-outs incurred prior in connection with any Permitted Acquisition or other Investment permitted by Section 6.04;
(ix) Indebtedness of Foreign Subsidiaries (other than Foreign ABL Loan Parties) in an amount not to exceed $10,000,000 at any one time outstanding;
(x) Indebtedness under the Fifth Amendment Effective Date ABL Credit Agreement in an aggregate principal amount not exceeding to exceed the lesser of (A) $5,000,000 at any time outstanding275,000,000 and (B) the Borrowing Base;
(ixxi) Indebtedness owed to any Person (including obligations of Loan Parties in respect of letters surety bonds (whether bid performance or otherwise) and performance and completion guarantees and other obligations of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Persona like nature, in each case incurred in the ordinary course of business;
(xxii) So long as no Default or Event of Default has occurred and is continuing or would result after giving effect to the incurrence of such Indebtedness, (A) Permitted Debt; provided that, after giving effect to the incurrence of such Indebtedness and any related transaction on a Pro Forma Basis, the Total Leverage Ratio shall not exceed 1.00 to 1.00 (in each case calculated as of the last day of the Fiscal Quarter of the Borrower then most recently ended for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b)); provided, further, that no Restricted Subsidiary that is not a Loan Party shall incur any Indebtedness under this clause (xii) and (B) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to clause (A) above;
(xiii) Permitted Refinancing Debt and Refinancing Indebtedness in respect thereof;
(xiv) Indebtedness incurred under leases of real property in respect of tenant improvements;
(A) Indebtedness of the Borrower or any Restricted Subsidiary assumed in connection with any Permitted Acquisition so long as (i) such Indebtedness is not incurred in contemplation of such Permitted Acquisition and (ii) after giving effect to the assumption of such Indebtedness and any related transaction on a Pro Forma Basis, the Total Leverage Ratio shall not exceed 1.50 to 1.00 and (B) any Refinancing Indebtedness in respect thereof;
(xvi) other Indebtedness in an aggregate principal amount not to exceed $25,000,000 at any time outstanding;
(xvii) Indebtedness consisting of performance bonds, bid bonds, appeal bonds, surety bonds, performance (a) the financing of insurance premiums and completion guarantees and similar (b) take-or-pay obligations (other than contained in respect of other Indebtedness)supply arrangements, in each case provided case, in the ordinary course of business;
(xixviii) obligations under any agreement governing the provision of treasury or cash management services, including deposit accounts, overnight draft, credit cards, debit cards, p-cards (including purchasing cards and commercial cards), funds transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade finance services and other cash management services;
(xix) Indebtedness in respect the form of Swap Agreements permitted by under Section 10.6.6.07;
(xiixx) Capital Lease Obligations [reserved]; and
(xxi) Indebtedness consisting of promissory notes issued to current or former officers, directors and employees (or their respective family members, estates or trusts or other entities for the benefit of any of the foregoing) of the Borrower or any Subsidiary that are incurred prior its Restricted Subsidiaries to the Fifth Amendment Effective Date and result from any arrangement whereby purchase or redeem capital stock or options of the Borrower or permitted pursuant to Section 6.08(a)(iv); provided that the aggregate principal amount of all such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement Indebtedness shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) 2,000,000 at any time outstanding.
(cb) Neither Holdings nor the The Borrower willwill not, nor and will they not permit any Restricted Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (orDisqualified Stock, other than, in the case of the Trust Preferred SecuritiesRestricted Subsidiaries, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstandingto the Borrower or a Restricted Subsidiary; provided that any such Preferred issuance of Equity Interests issued by the Borrower of any Restricted Subsidiary that is not a Loan Party to Holdings for purposes of matching Preferred Equity Interests issued by Holdings any Loan Party shall be excluded from the calculation of such amountsubject to Section 6.04.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit any Subsidiary to, createCreate, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1) Indebtedness existing on the Effective Date date hereof and set forth on Schedule 7.01 and Refinancing Indebtedness in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replacedthereof;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary, provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other SubsidiarySubsidiary to Holdings, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to the extent permitted under Section 10.4. and 7.04;
(Civ) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the ObligationsSection 7.04;
(Av) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, assets; provided that (A) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvementimprovement and the principal amount of such Indebtedness does not exceed the cost of acquiring, constructing or improving such fixed or capital assets and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding aggregate principal amount of such extensions, renewals and replacements does Indebtedness permitted by this clause (v) shall not exceed $75,000,000 at any time outstanding;
(vi) Indebtedness of any Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Subsidiary in a transaction permitted hereunder) after the principal date hereof, or Indebtedness of any Person that is assumed by any Subsidiary in connection with an acquisition of assets by such Subsidiary in a Permitted Acquisition or other acquisition permitted hereunder; provided that (A) such Indebtedness exists at the Indebtedness time such Person becomes a Subsidiary (or is so merged or consolidated) or such assets are acquired and is not created in contemplation of or in connection with such Person becoming a Subsidiary (or such merger or consolidation) or such assets being extended, renewed or replaced acquired and (plus any accrued but unpaid interest and premium thereon); provided, however, that B) the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 75,000,000 at any time outstanding;
(vii) Indebtedness owed in respect of any overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any automated clearing-house transfers of funds; provided that such Indebtedness shall be repaid in full within five Business Days of the incurrence thereof;
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date Foreign Subsidiaries in an aggregate principal amount not exceeding in excess of $5,000,000 50,000,000 at any time outstanding;
(ix) Indebtedness owed to of Holdings, the Borrower or any Person Subsidiary in an aggregate principal amount not exceeding $25,000,000 at any time outstanding; provided that no Default then exists or would result therefrom;
(including obligations x) Indebtedness in respect of letters of credit credit, bank guarantees and similar instruments issued for the benefit account of such Person) providing workers’ compensationHoldings, health, disability the Borrower or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred any Subsidiary in the ordinary course of businessbusiness supporting obligations under (A) workers’ compensation, unemployment insurance and other social security laws and (B) bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and obligations of a like nature;
(xxi) Indebtedness of the Borrower or any Subsidiary in respect the form of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and earn-outs or deferred payments of a similar obligations (nature incurred in connection with any Permitted Acquisition or other than in respect of other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements Investment permitted by pursuant to Section 10.6.7.04;
(xii) Capital Lease Obligations other unsecured Indebtedness (including Subordinated Indebtedness) of Holdings or the Borrower Borrower, including Indebtedness of Holdings consisting of notes convertible into common Equity Interests of Holdings (whether such conversion is to be settled in common Equity Interests of Holdings, cash or a combination thereof) (“Convertible Notes”), provided that (A) no Default then exists or would result therefrom, (B) such Indebtedness is not at any time guaranteed by any Subsidiary that are incurred prior is not a Loan Party, (C) the Borrower shall have delivered to the Fifth Amendment Effective Date and result from any arrangement whereby Administrative Agent a certificate executed by a Financial Officer of Holdings demonstrating that after giving effect to the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date incurrence of such incurrence Indebtedness on a Pro Forma Basis, Basis (1) Holdings and the Borrower would be in compliance with the financial covenant set forth in Section 7.11 recomputed as of the end of the Applicable Period and (2) the Leverage Ratio recomputed as defined of the end of the Applicable Period would be less than 3.00:1.0 and (iv) no such Indebtedness shall (A) mature or require any amortization payment to be made prior to the date that is 91 days after the Maturity Date or (B) be subject to any mandatory redemption, mandatory repurchase or other mandatory prepayments of principal (including, in the Existing Credit Agreement shall not exceed case of Convertible Notes, early conversion triggers) other than those that, in Holdings’ good faith judgment, are customary for senior unsecured high yield notes, senior subordinated high yield notes or senior unsecured or senior subordinated convertible notes, as the ratio then applicable under Section 10.11.(a)case may be;
(xiii) (A) Guarantees and/or indemnities (other than Indebtedness of one or more Foreign Subsidiaries formed under the laws of Singapore in respect an aggregate principal amount not in excess of payment of principal or interest) by the Borrower or $50,000,000 at any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreementtime outstanding; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiaryarising under Receivables Financings, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement Receivables Financing Amount shall not increase the amount of Indebtedness guaranteed except by an amount equal to exceed $50,000,000 outstanding at any accrued but unpaid interest and redemption premium on such Indebtednesstime.
(b) Issue any preferred stock or other preferred Equity Interests; provided that (i) Holdings will may issue preferred stock or other preferred Equity Interests that, in each case, do not constitute Disqualified Equity Interests, (ii) the Borrower may issue preferred stock or other preferred Equity Interests to Holdings and (iii) any Subsidiary of the Borrower may issue preferred stock or other preferred Equity Interests to the Borrower or any wholly owned Subsidiary of the Borrower. Notwithstanding anything to the contrary in this Section 7.01 or otherwise, no SPV shall contract, create, incur, assume or permit to exist any Indebtedness except (i) other than Indebtedness created existing from time to time under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstandinga Permitted Securitization Transaction.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amount.
Appears in 1 contract
Samples: Credit Agreement (Fairchild Semiconductor International Inc)
Indebtedness; Certain Equity Securities. (a) The Borrower Borrowers will not, and nor will not they permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created hereunder and under the other Loan Documents;
(iiA) the Senior Unsecured Notes in an aggregate principal amount not to exceed $250,000,000, (B) Refinancing Indebtedness in respect of the Senior Unsecured Notes issued pursuant to clause (A) above (it being understood and agreed that, for purposes of this Section 9.01(a)(ii), any Indebtedness that is incurred for the purpose of repurchasing or redeeming any Senior Unsecured Notes (or any Refinancing Indebtedness in respect thereof) shall, if otherwise meeting the requirements set forth in the definition of the term “Refinancing Indebtedness”, be deemed to be Refinancing Indebtedness in respect of the Senior Unsecured Notes (or such Refinancing Indebtedness), and shall be permitted to be incurred and be in existence, notwithstanding that the proceeds of such Refinancing Indebtedness shall not be applied to make such repurchase or redemption of the Senior Unsecured Notes (or such Refinancing Indebtedness) immediately upon the incurrence thereof, if (1) the proceeds of such Refinancing Indebtedness are applied to make such repurchase or redemption no later than 90 days following the date of the incurrence thereof and (2) at all times pending such application all the proceeds of such Refinancing Indebtedness are held in an account with the Administrative Agent, subject to its exclusive dominion and control, including the exclusive right of withdrawal, as collateral for the payment and performance of the obligations of the Borrowers under this Agreement (with the Administrative Agent hereby agreeing that it shall permit the Company to withdraw funds from such account upon request if (x) at the time thereof, no Event of Default shall have occurred and be continuing, (y) immediately following such withdrawal, such funds shall be applied to make any such repurchase or redemption of the Senior Unsecured Notes or to repay any such Refinancing Indebtedness and (z) the Company shall have delivered to the Administrative Agent a certificate of an Authorized Officer of the Company as to the matters set forth in the preceding clauses (x) and (y));
(iii) Indebtedness existing on the Effective Date date hereof and set forth in Schedule 10.1.(a), (2) 9.01 and any Refinancing Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replaced;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower Company to any Subsidiary and of any Subsidiary to the Borrower Company or any other Subsidiary, ; provided that (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower Company or any Subsidiary that is a Loan Party shall be subject to Section 10.4. 9.04 and (B) Indebtedness of the Borrower Company to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Subsidiary Loan Party shall be subordinated to the Obligations on the terms reasonably satisfactory to set forth in the AgentIntercompany Indebtedness Subordination Agreement;
(v) Guarantees by Holdings or the Borrower Company of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower Company or any other Subsidiary, ; provided that (A) the Indebtedness so Guaranteed is permitted by this Section 9.01 (other than clause (a)(iia)(iii) or (a)(vii)), (B) Guarantees by the Borrower Company or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and 9.04, (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the ObligationsObligations and (D) none of the Senior Unsecured Notes or the Indebtedness under the Term Loan Agreement shall be Guaranteed by any Subsidiary unless such Subsidiary is a Borrower or other Loan Party that has Guaranteed the Obligations pursuant to the Collateral Agreement;
(vi) (A) Indebtedness of the Borrower Company or any Subsidiary incurred to finance the acquisition, construction construction, repair, replacement or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower Company or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, ; provided that such Indebtedness is incurred prior to or within 90 270 days after such acquisition or the completion of such construction construction, repair, replacement or improvement, and (B) extensions, renewals and replacements Refinancing Indebtedness in respect of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed incurred or replaced assumed pursuant to clause (plus any accrued but unpaid interest and premium thereon)A) above; provided, however, provided further that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 25,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(viiA) Indebtedness of any Person that becomes a Subsidiary Loan Party (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Subsidiary Loan Party in a transaction permitted hereunder) after October 6the date hereof, 2006 but prior to the Fifth Amendment Effective Date, or Indebtedness of any Person that is assumed by any Subsidiary in connection with an acquisition of assets by such Subsidiary in a Permitted Acquisition; provided that such Indebtedness exists at the time such Person becomes a Subsidiary (or is so merged or consolidated) or such assets are acquired and was is not created in contemplation of or in connection with such Person becoming a SubsidiarySubsidiary (or such merger or consolidation) or such assets being acquired, and extensions, renewals and replacements of any such (B) Refinancing Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount in respect of Indebtedness permitted by this assumed pursuant to clause (viiA) shall not exceed $5,000,000 at any time outstandingabove;
(viii) (A) a Guarantee by the Borrower of other Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding the greater of (A) $5,000,000 50,000,000 and (B) 5.0% of the consolidated total assets of the Company as of the fiscal year most recently ended prior to the incurrence of such Indebtedness at any time outstanding;
(ix) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(x) Indebtedness of the Borrower Company 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 other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Hedging Agreements permitted by Section 10.6.9.07;
(xii) Capital Lease Obligations Indebtedness owed in respect of any overdrafts and related liabilities arising from treasury, depositary and cash management services or in connection with any automated clearinghouse transfers of funds; provided that such Indebtedness shall be repaid in full within five Business Days of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a)thereof;
(xiii) (A) Guarantees and/or indemnities (other than in respect Indebtedness of payment of principal or interest) by the Borrower Company or any Subsidiary in respect the form of capital contributionspurchase price adjustments, project completions earnouts, non-competition agreements or other arrangements representing acquisition consideration or deferred payments of a similar nature incurred in connection with any Permitted Acquisition, Permitted Foreign Acquisition or other investment permitted under Section 9.04;
(xiv) Refinancing Term Loan Indebtedness; provided that the Net Proceeds thereof are used to make the prepayments of the Term Loans.
(xv) Incremental Term Facility Debt and cost-overruns Alternative Incremental Term Facility Debt, provided that the aggregate principal amount of such Incremental Term Facility Debt and other performance matters and Alternative Incremental Term Facility Debt shall not exceed the amount permitted under the Term Loan Agreement;
(Bxvi) Guarantees and/or indemnities Indebtedness in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters)the Term Loan Agreement, in each case an aggregate principal amount not to exceed $670,000,000 at any time outstanding;
(xvii) Indebtedness representing deferred compensation to directors, officers, consultants or employees of the Company and its Subsidiaries incurred in connection with investments the ordinary course of business;
(xviii) Indebtedness consisting of promissory notes issued by any Loan Party to current or former officers, directors, consultants and employees or their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of Holdings permitted by Section 9.08;
(xix) other Indebtedness otherwise permitted under this Agreementof the Borrowers or any other Loan Party if, after giving effect to the incurrence thereof and the application of the proceeds thereof, the Total Leverage Ratio is equal to or less than 5.00 to 1.00; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (Axx) Indebtedness of Subsidiaries that are not Subsidiary Loan Parties in an aggregate principal amount not exceeding $100,000,000 at any joint venture that is not a Subsidiarytime outstanding if, provided that such Guarantee and such Indebtedness are in after giving effect prior to the Fifth Amendment Effective Date or (B) any extensionincurrence thereof and the application of the proceeds thereof, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount Total Leverage Ratio is equal to any accrued but unpaid interest and redemption premium on such Indebtednessor less than 5.00 to 1.00.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Guarantee obligations of the Company and the Subsidiaries under the Term Loan Agreement, (iii) unsecured Guarantees of the Senior Unsecured Notes to the extent required by the Senior Unsecured Notes Documents, (iv) Guarantees of Refinancing Indebtedness that would be and (v) Indebtedness and Guarantees expressly permitted to be created, incurred or assumed made by the Borrower or any Subsidiary Holdings under Sections 10.1.(a)(v), (ix), (x), (xiSection 9.01(a) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstandingSection 9.04.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amount.
Appears in 1 contract
Samples: Abl Credit Agreement (Affinia Group Intermediate Holdings Inc.)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (1) Indebtedness existing on the Effective Date and set forth in Schedule 10.1.(a), (2) Indebtedness existing on 6.01 to the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), 2005 Credit Agreement and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2)Indebtedness, provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose)replaced, (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium payable by the terms of such Indebtedness thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replaced and (D) shall be subordinated to the Obligations on the same terms as the Indebtedness being extended, renewed or replaced;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary, provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. 6.04 and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Subsidiary Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent;
(viv) Guarantees by the Borrower of Indebtedness of Holdings or any Subsidiary and by any Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(viia)(vi)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and 6.04, (C) Guarantees permitted under this clause (viv) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the ObligationsObligations and (D) no Subordinated Debt shall be Guaranteed by any Subsidiary unless such Subsidiary is a Loan Party that has Guaranteed the Obligations pursuant to the Collateral Agreement;
(v) (A) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, provided that such Indebtedness is incurred prior to or within 90 180 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of any such extensions, renewals and or replacements does not exceed the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium payable by the terms of such Indebtedness thereon); provided) and (C) Capital Lease Obligations incurred by the Borrower or any Subsidiary in respect of any Permitted Sale and Leaseback Transaction, however, provided that the aggregate principal amount of Indebtedness permitted by sub-clauses (A) and (B) of this clause (viv) shall not exceed $5,000,000 75,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(viivi) Indebtedness of any Person (A) that becomes a Subsidiary or merges with or into a Subsidiary or the Borrower after October 6the Effective Date or (B) all or substantially all the assets of which are acquired by the Borrower or any Subsidiary pursuant to a transaction in which Indebtedness is assumed by the Borrower or any Subsidiary, 2006 but prior to in each case after the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary or merges with or into a Subsidiary or the Borrower or at the time of such asset acquisition, and was is not created in contemplation of or in connection with such Person becoming a SubsidiarySubsidiary or merging with or into a Subsidiary or the Borrower or at the time of such asset acquisition, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium payable by the terms of such Indebtedness thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (viivi) shall not exceed $5,000,000 30,000,000 at any time outstanding;
(viiivii) (A) a Guarantee by Indebtedness in respect of netting services, overdraft protection or in connection with deposit accounts and securities accounts, in each case incurred in the Borrower ordinary course of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstandingbusiness;
(ixviii) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(xix) 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 other IndebtednessIndebtedness for borrowed money), in each case provided in the ordinary course of business;
(xix) Indebtedness in respect of Swap Agreements permitted by Section 10.6.6.07;
(xi) (A) Subordinated Debt that is issued for cash payable on the date of issuance thereof or as consideration for a Permitted Acquisition, provided that (1) if such Subordinated Debt is issued for cash, the Net Proceeds of such Subordinated Debt are used, promptly after such Net Proceeds are received by the Borrower, (x) to consummate one or more Permitted Acquisitions, or (y) to prepay Terms Loans pursuant to Section 2.11(c)(i), (2) no Default has occurred and is continuing or would result therefrom and (3) the Borrower is in compliance on a Pro Forma Basis after giving effect to the incurrence of such Subordinated Debt with the covenants contained in Sections 6.12 and 6.13 recomputed as of the last day of the most-recently ended fiscal quarter of the Borrower prior to the issuance of such Subordinated Debt for which financial statements have been delivered pursuant to Section 5.01(a) or (b) and, in the case of any issuance of Subordinated Debt in an aggregate principal amount in excess of $15,000,000, has delivered to the Administrative Agent a certificate of a Financial Officer to such effect, together with all relevant financial information reasonably requested by the Administrative Agent, including reasonably detailed calculations demonstrating compliance with clause (3) above and (B) Subordinated Refinancing Indebtedness in respect of Subordinated Debt issued pursuant to clause (A) above or this clause (B);
(xii) Capital Lease Obligations Guarantees or the assumption of up to $50,000,000 at any time outstanding of Indebtedness of Franchisees, suppliers, customers, distributors or licensees of the Borrower or any Subsidiary that are incurred prior and the Subsidiaries, in each case to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends extent permitted pursuant to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a6.04(o);
(xiii) Indebtedness secured by Liens pursuant to Section 6.02(xiii) in an aggregate principal amount not exceeding $50,000,000 at any time outstanding;
(Axiv) Guarantees and/or indemnities (other than in respect Indebtedness of payment Holdings or the Borrower not exceeding $20,000,000 at any time outstanding, evidenced by promissory notes issued to former or current management, directors, Franchisees or employees of principal or interest) by Holdings, the Borrower or any Subsidiary of the Subsidiaries in respect lieu of capital contributionsany cash payment permitted to be made under Section 6.08(a)(iii), project completions provided that (A) all such Indebtedness shall be unsecured and cost-overruns and other performance matters expressly subordinated to the prior payment in full in cash of all Obligations on terms that are reasonably satisfactory to the Administrative Agent and (B) Guarantees and/or indemnities the aggregate principal amount of all such Indebtedness incurred in respect any fiscal year of customary non-recourse carveouts (includingthe Borrower, without limitation environmental, fraud, misappropriation and bankruptcy matterswhen added to the aggregate amount of all Restricted Payments made in such fiscal year pursuant to Section 6.08(a)(iii), shall not exceed $5,000,000;
(xv) Indebtedness of Foreign Subsidiaries in each case in connection with investments or Indebtedness otherwise permitted under this Agreementan aggregate principal amount not exceeding $20,000,000 at any time outstanding; and
(xivxvi) Guarantees by the Borrower or other unsecured Indebtedness in an aggregate principal amount not exceeding $30,000,000 at any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtednesstime outstanding.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Subordinated Debt or unsecured Guarantees of any Subordinated Debt, provided that such Guarantees shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness that would be permitted so Guaranteed is subordinated to be createdthe Obligations, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Disqualified Equity Interests permitted pursuant to paragraph (c) of this Section 6.01 and (iv) other unsecured Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) 5,000,000 at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred preferred Equity Interests or any Disqualified Equity Interests, except (i) in the case of Holdings, preferred Equity Interests that are Qualified Equity Interests or (ii) in the case of Holdings or the Borrower (orBorrower, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Disqualified Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower permitted to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amountincurred under Section 6.01(a)(xvi) .
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents, the Bank Loan Documentation or the Indenture Documentation;
(ii) (1) Indebtedness existing (or incurred pursuant to contractual loan commitments existing) on the Effective Date and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), 6.01 and (3) extensions, renewals renewals, refinancings and replacements of any such Indebtedness described in clause that do not increase the outstanding principal amount thereof (1or commitments therefor) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be result in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter decreased weighted average life than the Indebtedness being extended, renewed or replacedthereof;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary, provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent;
(viv) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations6.04;
(Av) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals renewals, refinancings and replacements of any such Indebtedness so long as that do not increase the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon)thereof, provided that the aggregate principal amount of Indebtedness permitted by this clause (viiv) shall not exceed $5,000,000 at any time outstanding;
(viiivi) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary in respect of workers' compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion guarantees provided by the Borrower and the Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers' compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vii) in each case with the consent of the Required Lenders to be given or withheld in their absolute discretion, Indebtedness in respect of a Permitted Receivables Financing, provided that the Net Proceeds resulting from the sale, transfer or other disposition of Receivables in connection with such Permitted Receivables Financing are applied in accordance with Section 2.08(c);
(viii) Indebtedness of the Borrower or any Subsidiary that was Indebtedness of any other Person existing at the time such other Person was merged with or became a Subsidiary, including Indebtedness incurred prior to in connection with, or in contemplation of, such other Person's merging with or becoming a Subsidiary, and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the Fifth Amendment Effective Date outstanding principal amount thereof or result in an earlier maturity date or decreased weighted 40 of 69 average life thereof, provided that the aggregate principal amount of Indebtedness permitted under this clause (viii) shall not exceed $5,000,000 at any time outstanding;
(ix) non-interest bearing Indebtedness not for borrowed money, in the nature of customer deposits; and
(x) other unsecured Indebtedness in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
(ix) , provided that the aggregate principal amount of Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
Subsidiaries that are not Subsidiary Loan Parties permitted by this clause (x) 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 other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) 5,000,000 at any time outstanding.
(cb) Neither Holdings nor the The Borrower willwill not, nor and will they not permit any Subsidiary to, issue any preferred stock or permit to remain outstanding any Preferred other preferred Equity Interests, except that (i) the Borrower may issue preferred stock or other preferred Equity Interests except in the case of Holdings or the Borrower (orthat do not require mandatory cash dividends or redemptions and do not provide for any right on the part of the holder to require redemption, repurchase or repayment thereof, in each case prior to the case of date that is 180 days after the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by Maturity Date and (ii) the Borrower or any Subsidiary may issue directors' qualifying shares or shares required by applicable law to Holdings for purposes of matching Preferred Equity Interests issued be held by Holdings shall be excluded from a Person other than the calculation of such amountBorrower or any Subsidiary.
Appears in 1 contract
Samples: Revolving Credit Agreement (Memc Electronic Materials Inc)
Indebtedness; Certain Equity Securities. (a) The Allied Waste and the Borrower will not, and will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any IndebtednessIndebtedness or any Attributable Debt in respect of Sale and Leaseback Transactions, except:
(i) Indebtedness created under the Loan Documents;
(ii) Indebtedness (1including Guarantees) Indebtedness existing on the Restatement Effective Date and set forth in on Schedule 10.1.(a), (2) 6.01 and any Indebtedness existing on of any Subsidiary formed or acquired after the Fifth Amendment Restatement Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any guarantees such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor accordance with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replacedterms thereof;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior Hedging Agreements permitted pursuant to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement6.07;
(iv) Acquired Indebtedness of a Restricted Subsidiary acquired after the Borrower to any Subsidiary Restatement Effective Date and Acquired Indebtedness of any Subsidiary to a corporation merged or consolidated with or into the Borrower or any other Subsidiarya Restricted Subsidiary after the Restatement Effective Date, provided (A) that which Indebtedness in each case exists at the time of any such acquisition, merger, consolidation or conversion into a Restricted Subsidiary that and is not a Loan Party to created in contemplation of such event and where such acquisition, merger or consolidation is permitted by this Agreement; provided that the Borrower or any Subsidiary that is a Loan Party shall be subject to and the Restricted Subsidiaries comply with the provisions of Section 10.4. and (B) Indebtedness of the Borrower 5.10 with respect to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agentsuch acquired or newly formed Restricted Subsidiary;
(v) Guarantees by the Borrower of unsecured Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of Allied Waste, the Borrower or any other Subsidiary, provided Restricted Subsidiary that is issued to a seller of an Acquired Business and incurred in connection with a Permitted Acquisition;
(Avi) the unsecured Guarantees in respect of Indebtedness so Guaranteed is permitted by this Section pursuant to subparagraphs (other than clause (a)(ii) or (a)(vii)i), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and ii), (C) Guarantees permitted under this clause iv), (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
(A) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 at any time outstanding;
(viii) (A) a Guarantee by the Borrower of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
(ix) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(x) 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 other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (xxii), (xixiii), (xiv), (xv), (xvii), (xviii), (xx) and (xiiixxiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust Ithis Section 6.01(a), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any Guarantees in respect of Indebtedness that is subordinated to any of the Obligations or to Guarantees of the Obligations shall also be subordinated to the Obligations or to the Guarantees in favor of the Lenders under the Loan Documents, as the case may be, to the same extent as such Preferred Equity Interests issued by Indebtedness is subordinated to any of the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amount.Obligations;
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit None of the Company or any Subsidiary to, will create, incur, assume or permit to exist any Indebtedness, except:
(ia) Indebtedness created under the Loan Documents;
(ii) (1b) Indebtedness existing on the Effective Date and set forth on Schedule 6.01 and Refinancing Indebtedness in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one respect of any of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replacedforegoing;
(iii) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(ivc) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower Company or any other Subsidiary, ; provided that (A) that any such Indebtedness owing by any Loan Party shall be unsecured and shall be subordinated in right of payment to the Loan Document Obligations on terms customary for intercompany subordinated Indebtedness, as reasonably determined by the Administrative Agent, (B) any such Indebtedness owing to any Loan Party shall be evidenced by a promissory note which shall have been pledged pursuant to the Collateral Agreement and (C) any such Indebtedness owing by any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to incurred in compliance with Section 10.4. 6.04(d);
(d) Guarantees incurred in compliance with Section 6.04;
(e) Permitted First Priority Refinancing Indebtedness, Permitted Second Priority Refinancing Indebtedness and any Refinancing Indebtedness in respect of any of the foregoing;
(Bf) (i) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
(A) Indebtedness of the Borrower Company or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations Obligations, purchase money Indebtedness and any Indebtedness assumed by the Borrower Company or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, thereof and (Bii) extensions, renewals and replacements Refinancing Indebtedness in respect of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed incurred or replaced assumed pursuant to clause (plus any accrued but unpaid interest and premium thereon)i) above; provided, however, provided that the aggregate principal amount of Indebtedness permitted by this clause (vif) shall not exceed the greater of (x) $5,000,000 150,000,000 and (y) 5.0% of Total Assets (at the time of incurrence) at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(viig) (i) Indebtedness of any Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Subsidiary in a transaction permitted hereunder) after October 6, 2006 but prior to the Fifth Amendment Effective Date, or Indebtedness of any Person that is assumed by any Subsidiary in connection with an acquisition of assets by such Subsidiary in a Permitted Acquisition; provided that such Indebtedness exists at the time such Person becomes a Subsidiary (or is so merged or consolidated) or such assets are acquired and was is not created in contemplation of or in connection with such Person becoming a SubsidiarySubsidiary (or such merger or consolidation) or such assets being acquired, and extensions, renewals and replacements (ii) Refinancing Indebtedness in respect of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced assumed pursuant to clause (plus any accrued but unpaid interest and redemption premium thereon), i) above; provided further that the aggregate principal amount of Indebtedness permitted by this clause (viig) shall not exceed the greater of (x) $5,000,000 200,000,000 and (y) 6.50% of Total Assets (at the time of incurrence) at any time outstanding;
(viiih) Permitted Unsecured Indebtedness so long as, at the time of incurrence of such Permitted Unsecured Indebtedness, the Net Leverage Ratio, calculated on a Pro Forma Basis as of the date of incurrence thereof, is not in excess of 5.50 to 1.00; provided that (Ai) a Guarantee by immediately prior to and immediately after giving effect to the Borrower incurrence of any Permitted Unsecured Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) h), no Event of Default shall have occurred and be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations continuing and (Bii) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
(ix) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(x) 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 other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations of the Borrower or any Subsidiary that are incurred prior to the Fifth Amendment Effective Date and result from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred ifCompany will, on the date of incurrence of such incurrence Indebtedness, deliver to the Administrative Agent a certificate of a Financial Officer of the Company, dated such date, confirming the satisfaction of the conditions set forth above and attaching a reasonably detailed calculation of the Net Leverage Ratio on a Pro Forma Basis, Basis as of such date identifying the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(aPermitted Unsecured Indebtedness being incurred and specifying that it is being incurred pursuant to this clause (h);
(xiii) (A) Guarantees and/or indemnities (other than in respect of payment of principal or interest) by the Borrower or any ; provided further that no Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a SubsidiarySubsidiary Loan Party shall incur any Indebtedness under this Section 6.01(h) if, provided that such Guarantee at the time of, and after giving effect to, the incurrence of such Indebtedness are in effect prior to (and any substantially simultaneous use of the Fifth Amendment Effective Date or (BPermitted Amount) any extensionand the use of proceeds thereof, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that Permitted Amount would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 at any time outstanding; provided that any such Preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation of such amount.less than zero;
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Each of the Parent Guarantor and the Borrower will not, and will not permit any Subsidiary of their respective Subsidiaries to, directly or indirectly, create, incur, assume or permit to exist (including by way of Guarantee) any Indebtedness, except:
(i) Indebtedness created incurred and outstanding under the Loan Documents;
(ii) (1) Indebtedness existing on the Effective Date and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replaced[Reserved];
(iii) Additional Mortgage Indebtedness to Remain Outstanding and extensions, renewals and replacements any Permitted Refinancing thereof, in each case incurred, extended, renewed or replaced prior to the Fifth Amendment Effective Date if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreement;
(iv) Indebtedness of the Borrower to any Subsidiary Loan Party and of any Subsidiary to the Borrower or any other Subsidiary, provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any other Subsidiary that is a Loan Party shall be subject to Section 10.4. and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the AgentParty;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(ii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any other Subsidiary that is not a Loan Party shall or the Borrower, in each case, to the extent such Indebtedness was permitted to be subject to Section 10.4. incurred hereunder, and (C) Guarantees permitted under this clause (v) shall be if such Indebtedness is subordinated to the Obligations under the Loan Documents, such Guarantee is as subordinated in right of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated payment to the Obligations;
(Avi) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided that such Indebtedness is extinguished within five Business Days of its incurrence;
(vii) Indebtedness of the Borrower or any Subsidiary of the Borrower incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, ; provided that (A) such Indebtedness is incurred prior to or within 90 120 days after such acquisition or the completion of such construction or improvement, improvement (provided that this subclause (A) shall not apply with respect to fixed or capital assets owned as of and since the Original Effective Date so long as the proceeds of such Indebtedness incurred after the Original Effective Date are utilized to repay Loans to the extent required pursuant to Section 2.05(c)(iii)) and (B) extensions, renewals and replacements of any such Indebtedness so long as the outstanding principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $5,000,000 at any time outstanding, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective Date;
(vii) Indebtedness of any Person that becomes a Subsidiary after October 6, 2006 but prior to the Fifth Amendment Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and was not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 200.0 million at any time outstanding;
(viii) (A) a Guarantee by Hedging Agreements entered into in the Borrower ordinary course of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent business and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date in an aggregate principal amount not exceeding $5,000,000 at any time outstandingfor speculative purposes;
(ix) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ worker’s compensation, health, disability or other employee benefits or property, casualty or liability insuranceinsurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(x) Indebtedness of the Borrower or any Subsidiary and its Subsidiaries in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees bankers’ acceptances and similar obligations (other than in respect and trade-related letters of other Indebtedness)credit, in each case provided in the ordinary course of business and not in connection with indebtedness for money borrowed, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 10.6.;
(xii) Capital Lease Obligations arising from agreements of the Borrower or any Subsidiary that are of the Borrower providing for indemnification, adjustment of purchase price, earn-outs or similar obligations, in each case, incurred prior to or assumed in connection with the Fifth Amendment Effective Date disposition of any business, assets or a Subsidiary of the Borrower, other than Guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary of the Borrower for the purpose of financing such acquisition;
(xii) obligations in respect of performance and result from any arrangement whereby surety bonds and completion guarantees provided by the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in of its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined Subsidiaries in the Existing Credit Agreement shall ordinary course of business and not exceed the ratio then applicable under Section 10.11.(a)in connection with indebtedness for money borrowed;
(xiii) Indebtedness incurred by Non-Guarantor Subsidiaries and Foreign Subsidiaries which is Non-Recourse Debt;
(Axiv) Guarantees and/or indemnities any Permitted Sponsor Indebtedness;
(xv) Prepaid Insurance in an amount not to exceed $15.0 million at any time outstanding;
(xvi) Permitted Kansas Bond Financing not to exceed $100.0 million at any time outstanding;
(xvii) Permitted IRB Lease Obligations;
(xviii) Indebtedness assumed in connection with any Permitted Acquisition; provided that such Indebtedness is not incurred in contemplation of such Permitted Acquisition, and modifications, refinancings, refundings, renewals or extensions thereof, (c) so long as (x) no Default then exists or would arise therefrom, (y) the Borrower and its Subsidiaries are in compliance, on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness, with the covenant contained in Section 6.13 recomputed as at the date of the last ended Test Period, as if such incurrence (and any related repayment of other Indebtedness) had occurred on the first day of the relevant Test Period and (z) no more than $40.0 million in respect aggregate principal amount of payment Indebtedness may be outstanding under this subclause (xviii) at any time;
(xix) Permitted Subordinated Indebtedness, so long as (x) no Default then exists or would arise therefrom and (y) the Borrower and its Subsidiaries are in compliance, on a Pro Forma Basis after giving effect to the incurrence of principal or interestsuch Indebtedness, with the covenants contained in Section 6.13 recomputed as at the date of the last ended Test Period, as if such incurrence (and any related repayment of other Indebtedness) by had occurred on the first day of the relevant Test Period;
(xx) other unsecured Indebtedness of the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case in connection with investments or Indebtedness otherwise permitted under this Agreement; and
(xiv) Guarantees by the Borrower or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtedness.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified Equity Interests in an aggregate principal amount not exceeding $150,000,000 50.0 million at any time outstanding; provided that any such Preferred Equity Interests issued by and
(xxi) Permitted Additional Indebtedness, so long as (x) no Default then exists or would arise therefrom and (y) the Borrower and its Subsidiaries are in compliance, on a Pro Forma Basis after giving effect to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from the calculation incurrence of such amountIndebtedness, with the covenants contained in Section 6.13 recomputed as at the date of the last ended Test Period, as if such incurrence (and any related repayment of other Indebtedness) had occurred on the first day of the relevant Test Period.
(b) The Parent Guarantor will not, directly or indirectly, issue any Disqualified Capital Stock other than to the Borrower or a Subsidiary Loan Party. The Borrower will not permit any of its Subsidiaries to, directly or indirectly, issue any Preferred Stock other than to the Borrower or a Subsidiary Loan Party.
Appears in 1 contract
Samples: Credit Agreement (Spirit AeroSystems Holdings, Inc.)
Indebtedness; Certain Equity Securities. (a) The Each Borrower will not, and will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any IndebtednessIndebtedness or Attributable Debt, except:
(i) (A) Indebtedness created under the Loan Documents, (B) Indebtedness created under the Parent Credit Agreement and the “Loan Documents” thereunder, and (C) (1) Ratable Guarantees of Ratable FCX Obligations by the PCA Loan Parties and (2) Indebtedness arising pursuant to Ratable Liens securing Ratable Obligations;
(ii) (1) Indebtedness Indebtedness, including Guarantees, existing on the Effective Date date hereof and set forth in Schedule 10.1.(a), (2) Indebtedness existing on the Fifth Amendment Effective Date that is permitted by one of the other subsections of this Section 10.1.(a), and (3) extensions, renewals and replacements of any such Indebtedness described in clause (1) or (2), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), and (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replaced6.01;
(iii) Indebtedness of FCX to any Restricted Subsidiary and of any Restricted Subsidiary to FCX or any other Restricted Subsidiary; provided that any such Indebtedness (A) owing to FCX or, at any time on and after the Additional Mortgage Indebtedness and extensionsCollateral Date, renewals and replacements thereofowing to any PCA Loan Party, in each case incurredshall, extended, renewed or replaced prior to the Fifth Amendment Effective Date ifextent that any such Indebtedness from any single obligor to any single obligee exceeds $25,000,000 in aggregate principal amount, on be evidenced by a promissory note and shall have been pledged pursuant to the date of Collateral Agreement or the Additional Collateral Agreement, as applicable, and (B) owing to PTFI, shall, to the extent that any such incurrence or extensionIndebtedness from any single obligor to any single obligee exceeds $25,000,000 in aggregate principal amount, renewal or replacement be evidenced by a promissory note that shall have been pledged pursuant to the Fourth Amended and after giving effect thereto on a Pro Forma BasisRestated Lender Fiduciary Assignment and/or the Lender Security Agreement Fourth Amendment, the Leverage Ratio as defined in the Existing Credit Agreement shall not exceed the ratio then applicable under Section 10.11.(a) of the Existing Credit Agreementapplicable;
(iv) secured or unsecured Indebtedness of the Borrower to FCX or any Restricted Subsidiary and Attributable Debt in respect of any Subsidiary to the Borrower or any other Subsidiary, provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary that is a Loan Party shall be subject to Section 10.4. sale and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Agent;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is leaseback transactions permitted by this Section (other than clause (a)(ii) or (a)(vii)6.06(a), (B) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 10.4. and (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary that is a Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
(A) Indebtedness of the Borrower or any Subsidiary in each case incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, thereof but excluding Project Financings; provided that (A) any such Indebtedness or Attributable Debt is incurred within 180 days prior to or within 90 180 days after such acquisition or the completion of such construction or improvement, improvement and (B) extensions, renewals and replacements of any such Indebtedness so long as Attributable Debt is incurred in accordance with Section 6.06; and provided further in each case that (1) no Event of Default shall have occurred and be continuing or would result therefrom and (2) immediately after giving effect to the outstanding principal amount of such extensionsincurrence thereof, renewals the Incurrence Test would be satisfied;
(v) Project Financings and replacements does not exceed Guarantees thereof in each case by the principal direct or indirect parent or parents of the Indebtedness being extendedapplicable Project Financing Subsidiary; provided in each case that (A) no Event of Default shall have occurred and be continuing or would result therefrom and (B) immediately after giving effect to the incurrence thereof, renewed or replaced (plus any accrued but unpaid interest and premium thereon); provided, however, that the aggregate principal amount of Indebtedness permitted by this clause Incurrence Test would be satisfied;
(vi) shall not exceed $5,000,000 at any time outstandingin the case of FCX, and any Indebtedness permitted by this clause (vi) that is incurred on or after the Fifth Amendment Effective Date shall not be used to finance the acquisition, construction, improvement or expansion of hotels not owned by the Borrower or its Subsidiaries as of the Fifth Amendment Effective DateSenior Notes;
(vii) Indebtedness unsecured Guarantees of any Person that becomes FCX or PTFI of obligations of a Subsidiary after October 6, 2006 but prior purchaser in an FCX Assisted PTFI Sale to the Fifth Amendment Effective Date, provided that lenders providing financing for such Indebtedness exists at the time such Person becomes a Subsidiary and was sale in an aggregate amount not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 at any time outstandingin excess of (x) the aggregate amount of cash consideration received by FCX or any Restricted Subsidiary for such FCX Assisted PTFI Sale minus (y) the aggregate amount of payments theretofore made in respect of principal obligations under such Guarantee;
(viii) (A) a Guarantee by the Borrower letters of Indebtedness of Holdings permitted under Section 10.1.(b)(iii), provided the Guarantee permitted under this clause (viii)(A) shall be subordinated to the Obligations to the same extent credit in connection with environmental assurances and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (B) other unsecured Indebtedness of the Borrower or any Subsidiary incurred prior to the Fifth Amendment Effective Date reclamation in an aggregate principal face amount not exceeding $5,000,000 700,000,000 at any time outstanding;
(ix) unsecured Indebtedness owed of FCX or any Loan Party; provided that all the Net Proceeds thereof are applied promptly to any Person (including obligations prepay Term Loans in respect accordance with Section 2.10 of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of businessParent Credit Agreement;
(x) other Indebtedness of FCX; provided that (A) no Event of Default shall have occurred and be continuing or would result therefrom and (B) immediately after giving effect to the Borrower or any Subsidiary in respect of performance bondsincurrence thereof, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations (other than in respect of other Indebtedness), in each case provided in the ordinary course of businessIncurrence Test would be satisfied;
(xi) other Indebtedness of the Restricted Subsidiaries and Attributable Debt in respect of Swap Agreements sale and leaseback transactions permitted by pursuant to Section 10.6.;6.06(c) in an aggregate principal amount at any time outstanding, taken together with all outstanding secured Indebtedness of FCX incurred under clause (x), (A) not in excess of the greater of $1,500,000,000 and 3.5% (or (A) at any time when the aggregate principal amount of the Revolving Commitments and the Term Loans and the revolving commitments under the Parent Credit Agreement shall be less than $8,000,000,000 but greater than or equal to $5,000,000,000, 6% or (B) at any time when FCX is Investment Grade and the aggregate principal amount of the Revolving Commitments and the Term Loans and the revolving commitments under the Parent Credit Agreement shall be less than $5,000,000,000, 8%) of Consolidated Total Assets; provided that (1) no Event of Default shall have occurred and be continuing or would result therefrom and (2) immediately after giving effect to the incurrence thereof, the Incurrence Test would be satisfied; and
(xii) Capital Lease Obligations Permitted Refinancings of Indebtedness or Attributable Debt outstanding under clauses (i)(C) (in connection with a Permitted Refinancing of the Borrower related Indebtedness), (ii), (iv), (v), (vi), (vii), (ix) and (x). Notwithstanding the foregoing or any other provision hereof, (1) no Restricted Subsidiary that are incurred prior shall Guarantee the Senior Notes, (2) no US Receivables Facility shall be established unless an intercreditor agreement reasonably satisfactory to the Fifth Amendment Effective Date and result from any arrangement whereby Administrative Agent shall be effective between the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other property that it intends to use for substantially Administrative Agent (the same purpose or purposes as the property sold or transferred if, on the date substantive provisions of such incurrence on a Pro Forma Basis, the Leverage Ratio as defined in the Existing Credit Agreement which shall not exceed the ratio then applicable under Section 10.11.(a);
(xiii) (A) Guarantees and/or indemnities (require any action by such financing parties or their representatives other than in respect connection with and following the occurrence of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributionsAdditional Collateral Date other than to accommodate potential security interests under the Additional Security Documents, project completions and cost-overruns and other performance matters and (B) Guarantees and/or indemnities in respect of customary non-recourse carveouts (including, without limitation environmental, fraud, misappropriation and bankruptcy matters), in each case including in connection with investments lock-box procedures) and the financing parties for such Receivables Facility or Indebtedness otherwise permitted their representative (and each Lender hereby authorizes and directs the Administrative Agent to enter into such intercreditor agreement), and (3) no Receivables Facility shall be established under this Agreement; and
(xiv) Guarantees by the Borrower which assets of PTFI or any Subsidiary of: (A) Indebtedness of any joint venture that is not a Subsidiary, provided that such Guarantee and such Indebtedness its subsidiaries are in effect prior to the Fifth Amendment Effective Date or (B) any extension, renewal or replacement of Indebtedness (the “Original Indebtedness”) described in clause (A) so long as such Borrower or Subsidiary guaranteed the Original Indebtedness prior to the Fifth Amendment Effective Date and such extension, renewal or replacement shall not increase the amount of Indebtedness guaranteed except by an amount equal to any accrued but unpaid interest and redemption premium on such Indebtednessincluded.
(b) Holdings FCX will not create, incur, assume permit PTFI nor any other Restricted Subsidiary to issue any preferred stock or permit to exist other preferred Equity Interests; provided that PTFI and any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness that would be permitted to be created, incurred Restricted Subsidiary may issue preferred stock or assumed by the Borrower or any Subsidiary under Sections 10.1.(a)(v), (ix), (x), (xi) and (xiii) and (iii) Indebtedness in respect of the Convertible Notes in an aggregate principal amount not exceeding $150,000,000 (plus an over allotment of up to 15.0%) at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue or permit to remain outstanding any Preferred Equity Interests except in the case of Holdings or the Borrower (or, in the case of the Trust Preferred Securities, MHG Capital Trust I), Preferred Equity Interests that are Qualified other preferred Equity Interests in an aggregate principal stated amount not exceeding in excess of $150,000,000 at any time outstanding500,000,000; provided that any no such Preferred preferred stock or preferred Equity Interests issued by the Borrower to Holdings for purposes of matching Preferred Equity Interests issued by Holdings shall be excluded from subject to any redemption, repurchase or defeasance requirement prior to the calculation of such amountdate six months after the Tranche B Maturity Date.
Appears in 1 contract
Samples: Credit Agreement (Freeport McMoran Copper & Gold Inc)
