Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except: (a) Indebtedness under the Loan Documents; (b) Indebtedness set forth on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate; (c) intercompany Indebtedness among the Borrower and its Subsidiaries; (d) obligations (contingent or otherwise) existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party; (e) purchase money Indebtedness, subject to the limitations set forth in Section 8.01(i); (f) Indebtedness existing in or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z); (g) other Indebtedness as long as after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01; and (h) Guarantees with respect to Indebtedness permitted under this Section 8.03.
Appears in 4 contracts
Samples: Credit Agreement (Energen Corp), Credit Agreement (Energen Corp), Credit Agreement (Energen Corp)
Indebtedness. CreateThe Borrower will not, and will not permit any Restricted Subsidiary to, create, incur, assume or suffer permit to exist any Indebtedness, except:
(ai) Indebtedness created under the Loan Documents;
(bii) Indebtedness existing on the Escrow Date and after giving effect to the Spin Transaction and set forth on Schedule 8.03 7.03(a) and Refinancing Indebtedness in respect thereof;
(iii) Indebtedness of the Borrower to any Restricted Subsidiary and renewals, refinancings and extensions thereof)of any Restricted Subsidiary to the Borrower or any other Restricted Subsidiary; provided that (iA) such Indebtedness shall not have been transferred to any Person other than the Borrower or any Restricted Subsidiary, (B) any such Indebtedness owing by any Loan Party to a Restricted Subsidiary that is not a Loan Party shall be unsecured and subordinated in right of payment to the Obligations on terms customary for intercompany subordinated Indebtedness, as reasonably determined by the Administrative Agent and (C) any such Indebtedness shall be incurred in compliance with Section 7.03(d);
(iv) Guarantees incurred in compliance with Section 7.03(d);
(v) Indebtedness of the Borrower or any Restricted Subsidiary (A) incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capitalized Lease Obligations, provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement and the principal amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest ratecost 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) shall not exceed $50,000,000 at any time outstanding;
(cvi) intercompany Indebtedness among in respect of netting services, overdraft protections deposit and checking accounts, in each case, in the Borrower and its Subsidiariesordinary course of business;
(dvii) obligations (contingent Indebtedness in respect of letters of credit, bank guarantees and similar instruments issued for the account of the Borrower or otherwise) existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person Restricted Subsidiary in the ordinary course of business for the purpose of directly mitigating risks associated with liabilitiessupporting obligations under workers’ compensation, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, unemployment insurance and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting partyother social security laws;
(eviii) Indebtedness of the Borrower or any Restricted Subsidiary in the form of bona fide purchase money Indebtedness, subject to the limitations set forth price adjustments or earn-outs incurred in connection with any Permitted Acquisition or other Investment permitted by Section 8.01(i7.03(d);
(fix) the Senior Notes and any Refinancing Indebtedness in respect thereof;
(x) Indebtedness existing in or relating owed to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or EHI with respect to any return of excess escrow funds;
(xi) Indebtedness in connection with its usual operationsone or more standby letters of credit or performance or surety bonds or completion guarantees issued by the Borrower or a Restricted Subsidiary in the ordinary course of business or pursuant to self-insurance obligations and not in connection with the borrowing of money or the obtaining of advances or credit;
(A) Permitted Debt; provided that, subject after giving effect to the limitations set forth incurrence of such Indebtedness and any related transaction on a pro forma basis the Total Leverage Ratio shall not exceed 4.50 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 8.01(z7.01(a)); provided, further, that the aggregate principal amount of Indebtedness of the Restricted Subsidiaries that are not Loan Parties permitted by this clause (xii) shall not exceed $25,000,000 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 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 the greater of (i) $25,000,000 at any time outstanding or (y) 2.5% of Consolidated Tangible Assets;
(xvii) Indebtedness consisting of (A) the financing of insurance premiums and (B) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(xviii) 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 the form of Swap Agreements permitted under Section 7.03(k);
(gxx) other Indebtedness as long as after giving effect thereto arising from agreements of the Borrower is or a Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in compliance each case, incurred in connection with the financial covenant disposition of any business, assets or Capital Stock of a Subsidiary, other than Guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Capital Stock; provided, however, that the maximum aggregate liability in Section 8.11 on respect of all such Indebtedness shall at no time exceed the gross proceeds actually received by the Borrower or such Restricted Subsidiary in connection with such disposition;
(xxi) Indebtedness of Foreign Subsidiaries (i) incurred to provide consideration for, or to provide all or any portion of the funds or credit support utilized to consummate, a Pro Forma Basis, subject Permitted Acquisition or (ii) incurred in an aggregate principal amount outstanding at any one time not to exceed $50,000,000 (measured at the time of incurrence);
(xxii) Indebtedness to the limitations set forth extent that the Net Proceeds thereof are promptly deposited to defease or to satisfy and discharge the Senior Notes in Section 8.01each case in accordance with the requirements of the Senior Note Indenture;
(xxiii) the Separation Obligations; and
(hxxiv) Guarantees with respect Indebtedness under any Permitted Receivables Financing incurred on or after the Funding Date in an aggregate amount at any time outstanding not to Indebtedness permitted under this exceed $75,000,000. The Borrower will not, and will not permit any Restricted Subsidiary to, issue any Disqualified Stock, other than, in the case of the Restricted Subsidiaries, to the Borrower or any other Restricted Subsidiary; provided that any issuance of Equity Interests of any Restricted Subsidiary that is not a Loan Party to any Loan Party shall be subject to Section 8.037.03(d).
Appears in 4 contracts
Samples: Credit Agreement (Energizer SpinCo, Inc.), Credit Agreement (Energizer Holdings Inc), Escrow Agreement (Energizer SpinCo, Inc.)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, in each case, of a Subsidiary, except:
(a) Indebtedness under Current accounts payable arising in the Loan Documentsordinary course of business;
(b) Indebtedness set forth outstanding on the date hereof and listed on Schedule 8.03 (7.03 and renewalsany refinancings, refinancings and refundings, renewals or extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest ratethereunder;
(c) intercompany Indebtedness among of a Subsidiary owing to the Borrower and its Subsidiariesor another Subsidiary;
(d) Guarantees by any Subsidiary in respect of Indebtedness of the Borrower or of another Subsidiary otherwise permitted hereunder;
(e) obligations (contingent or otherwise) of any Subsidiary existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(ef) Indebtedness in respect of capital leases, Synthetic Lease Obligations and purchase money Indebtedness, subject to obligations for fixed or capital assets within the limitations set forth in Section 8.01(i7.01(d);
(f) Indebtedness existing in or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z);; and
(g) Other secured or unsecured Indebtedness not otherwise permitted by the foregoing clauses of this Section 7.03, so long as the aggregate principal amount of such Indebtedness, when aggregated with all other Indebtedness outstanding as long as after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01; and
(h) Guarantees with respect to Indebtedness permitted under this Section 8.03clause (f) above, does not exceed 20% of Consolidated Tangible Net Worth.
Appears in 4 contracts
Samples: Credit Agreement (Lowes Companies Inc), Credit Agreement (Lowes Companies Inc), Credit Agreement (Lowes Companies Inc)
Indebtedness. CreateHoldings will not permit any of its Subsidiaries (other than the Borrower) to, contract, create, incur, assume or suffer to exist any Indebtedness, except:
(a) Specified Permitted Existing Debt and any extensions, renewals or refinancings of any of the Indebtedness under referred to in this clause (a), either by the Loan Documentsoriginal obligor thereunder or by another Subsidiary to the extent that such Indebtedness is not increased from that outstanding at the time of any such extension, renewal or refinancing;
(b) Indebtedness set forth on Schedule 8.03 (and renewals, refinancings and extensions thereofObligations under letters of credit described in Section 8.03(c); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;
(c) intercompany Indebtedness among the Borrower in respect of Permitted Currency Agreements and its SubsidiariesPermitted Commodities Agreements;
(d) obligations (contingent or otherwise) existing or arising Obligations of Subsidiaries of the Borrower under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person letters of credit incurred in the ordinary course of business in connection with the purchase of products or goods for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes use in the value day-to-day operations of securities issued by such Person, the Borrower and not for purposes of speculation its Subsidiaries consistent with the Borrower's past practices or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting partythen current industry practices;
(e) purchase money Indebtedness, subject to the limitations set forth in Indebtedness secured by Liens permitted by Section 8.01(i8.03(d);
(fi) Indebtedness existing owing by any such Subsidiary to Holdings or any Wholly-Owned Subsidiary of Holdings and (ii) Indebtedness of any such Subsidiary (x) consisting of Contingent Obligations in respect of, or relating to real estate acquired by a Loan Party or a (y) constituting reimbursement obligations under letters of credit issued in support of, obligations of any Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject of Holdings (other than the Borrower) to the limitations set forth in Section 8.01(z)extent such other obligations are permitted by this Agreement;
(g) Indebtedness of any such Subsidiary in any manner guaranteeing or intended to guarantee, whether directly or indirectly, any leases, dividends or other monetary obligations of any Person in which such Subsidiary has an ownership interest, provided that the aggregate maximum stated or determinable amount (or, if not stated or determinable, the maximum reasonably anticipated liability in respect of such Indebtedness as long as after giving effect thereto determined in good faith by such Subsidiary) of all Indebtedness permitted pursuant to this clause (g) shall not exceed at any time an amount in excess of $150,000,000;
(h) Indebtedness of any such Subsidiary with respect to which neither Holdings nor the Borrower (i) is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01co-obligor or (ii) has any Contingent Obligation; and
(i) Indebtedness not otherwise permitted by the foregoing clauses (a) through (h), provided that the aggregate outstanding principal amount of Indebtedness on a consolidated basis incurred pursuant to this clause (i) Guarantees with respect shall not exceed an amount equal to Indebtedness permitted under this Section 8.03the sum of (x) $250,000,000 plus (y) 7-1/2% of Consolidated Net Worth at any time.
Appears in 4 contracts
Samples: Credit Agreement (RJR Nabisco Inc), 364 Df Credit Agreement (Nabisco Inc), Credit Agreement (Nabisco Inc)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness set forth outstanding on the date hereof listed on Schedule 8.03 (7.03 and renewalsany renewal or replacement thereof, refinancings and extensions thereof); provided that (i) so long as such renewal or replacement does not increase the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rateIndebtedness;
(c) intercompany Indebtedness among the Borrower and its Subsidiaries;
(d) obligations (contingent or otherwise) of the Company or any Subsidiary existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(ed) Indebtedness in respect of capital leases, Synthetic Lease Obligations and purchase money Indebtedness, subject to obligations for fixed or capital assets within the limitations set forth in the proviso to Section 8.01(i7.01(i);
(e) Indebtedness of Subsidiaries in an aggregate principal amount not to exceed $500,000,000 at any time outstanding;
(f) any Guarantee by the Company of Indebtedness existing in or relating to real estate acquired of any Subsidiary permitted by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in this Section 8.01(z)7.03;
(g) Indebtedness under Permitted Securitization Facilities;
(h) Indebtedness of a Person, or in respect of assets, acquired pursuant to a Permitted Acquisition and existing at the time of such Acquisition; provided that (I) such Indebtedness (x) shall not have been incurred in contemplation of such Acquisition, (y) may not be extended, renewed or refunded except as otherwise permitted by this Agreement, and (z) in the case of Indebtedness secured by a Lien on the assets acquired pursuant to a Permitted Acquisition (or on the assets of a Person that becomes a Subsidiary as a result of a Permitted Acquisition), such Indebtedness, together with any other secured Indebtedness permitted by this clause (h), shall not exceed $50,000,000 in the aggregate outstanding at any time and (II) neither the Company nor any Subsidiary (other than a Person acquired as long as after giving effect thereto the Borrower part of such Permitted Acquisition) is in compliance directly or indirectly liable for such Indebtedness, whether through any Guarantee or otherwise, other than liability with the financial covenant in Section 8.11 on a Pro Forma Basis, subject respect to which recourse is limited to the limitations set forth in Section 8.01assets so acquired;
(i) unsecured Indebtedness of the Company; and
(hj) Guarantees with respect Indebtedness owed by any Subsidiary to Indebtedness permitted under this Section 8.03the Company or any other Subsidiary (“Inter-Company Indebtedness”).
Appears in 4 contracts
Samples: Credit Agreement (Avnet Inc), Credit Agreement (Avnet Inc), Credit Agreement (Avnet Inc)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Guarantees by or from Borrower, CNL HP or any Subsidiary in respect of Indebtedness set forth on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rateotherwise permitted hereunder;
(c) intercompany Indebtedness among the Borrower and its Subsidiaries;
(d) obligations (contingent or otherwise) of Borrower, CNL HP or any Subsidiary thereof existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(ed) Indebtedness in respect of capital leases, Synthetic Lease Obligations and purchase money Indebtedness, subject to obligations for fixed or capital assets within the limitations set forth in Section 8.01(i7.01(i).
(e) Indebtedness existing as of the date of this Agreement;
(f) with respect to any Subsidiary that is not an Owner or Tenant, Indebtedness existing in or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes which individually or in connection with its usual operations, subject the aggregate would not reasonably be expected to the limitations set forth result in Section 8.01(z)a Material Adverse Effect;
(g) other Indebtedness as long as after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basispermitted under Sections 6.12(e), subject to the limitations set forth in Section 8.01; and(f) and (i);
(h) Guarantees with respect to Any amendment and restatement of Indebtedness permitted under this Section 8.03hereunder.
Appears in 3 contracts
Samples: Credit Agreement (CNL Healthcare Properties, Inc.), Term Loan Agreement (CNL Healthcare Properties, Inc.), Credit Agreement (CNL Healthcare Properties, Inc.)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness, except:
(a) (x) Indebtedness under (other than as described in Section 6.01(b) below) existing or committed on the Effective Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan DocumentsParty to any subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(e);
(b) Indebtedness set forth on Schedule 8.03 created hereunder (including pursuant to Section 2.21, Section 2.22 and renewals, refinancings and extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if anySection 2.23) and subordination (if any), under the other Loan Documents and other material terms taken as a whole, of any Refinancing Notes incurred to Refinance such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rateIndebtedness;
(c) intercompany Indebtedness among of the Borrower and its Subsidiariesor any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations (contingent in respect of letters of credit or otherwisebank guarantees or similar instruments for the benefit of) existing any person providing workers’ compensation, health, disability or arising under other employee benefits or property, casualty or liability insurance to the Borrower or any Swap ContractSubsidiary, provided that (i) pursuant to reimbursement or indemnification obligations to such obligations are (or were) entered into by such Person person, in each case in the ordinary course of business for the purpose of directly mitigating risks associated or consistent with liabilities, commitments, investments, assets, past practice or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting partyindustry practices;
(e) purchase money Indebtedness, subject Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the limitations set forth Borrower or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in Section 8.01(i)the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness existing in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or relating consistent with past practice or industry practices, including those incurred to real estate acquired by a Loan Party secure health, safety and environmental obligations in the ordinary course of business or a Subsidiary for transmission, distribution consistent with past practice or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z)industry practices;
(g) Indebtedness arising from the honoring by a bank or other Indebtedness as long as after giving effect thereto financial institution of a check, draft or similar instrument drawn against insufficient funds in the Borrower is ordinary course of business or other cash management services, in compliance with each case incurred in the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01; and
(h) Guarantees with respect to Indebtedness permitted under this Section 8.03.ordinary course of business;
Appears in 3 contracts
Samples: Credit Agreement (Enhabit, Inc.), Credit Agreement (Enhabit, Inc.), Credit Agreement (Encompass Health Corp)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness set forth on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;
(c) intercompany Indebtedness among to the Borrower and its Subsidiariesextent that the making of the loans or advances to the applicable obligor is not prohibited by Section 8.02;
(d) obligations (contingent or otherwise) existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) purchase money IndebtednessIndebtedness (including obligations in respect of Capital Leases) hereafter incurred to finance the purchase of fixed assets, subject to and renewals, refinancings and extensions thereof, provided that (i) the limitations set forth in Section 8.01(i)aggregate outstanding principal amount of all such Indebtedness shall not exceed $30,000,000 at any one time outstanding; and (ii) such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed, including the cost of transportation and installation of the asset(s) financed;
(f) Indebtedness existing of Foreign Subsidiaries in or relating an aggregate principal amount not to real estate acquired exceed $50,000,000 at any one time outstanding (of which not more than $30,000,000 may be secured by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Liens on property of such Foreign Subsidiaries permitted by Section 8.01(z8.01(l));
(g) other purchase money Indebtedness as long as hereafter incurred to finance the purchase of real property, and renewals, refinancings and extensions thereof, provided that (i) the aggregate outstanding principal amount of all such Indebtedness shall not exceed $25,000,000 at any one time outstanding; and (ii) such Indebtedness when incurred shall not exceed the purchase price of the real property financed;
(h) unsecured Indebtedness of the Borrower not otherwise permitted under this Section 8.03; provided that after giving effect thereto to the Borrower is incurrence thereof (i) no Event of Default shall exist and (ii) the Loan Parties are in compliance with the financial covenant covenants set forth in Section 8.11 on a Pro Forma Basis, subject to Basis and the limitations set forth in Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.01; and8.11(a));
(hi) Guarantees with respect to Indebtedness permitted under this Section 8.03; provided that any such Guarantee given by a Loan Party in support of Indebtedness of a Subsidiary that is not a Loan Party must be permitted by Section 8.02(i);
(j) to the extent constituting Indebtedness, obligations of the Borrower to redeem or repurchase its Equity Interests as described in Sections 8.06(c) and 8.06(d); and
(k) Indebtedness of the type described in Section 8.03(e) of any Person that becomes a Subsidiary after the Closing Date as a result of a Permitted Acquisition or otherwise assumed by the Borrower or any of its Subsidiaries in connection with a Permitted Acquisition, provided that such Indebtedness (and any Guarantees thereof) exists at the time of such Permitted Acquisition, and is not created in contemplation of or in connection with such Permitted Acquisition.
Appears in 3 contracts
Samples: Credit Agreement (ESCO Corp), Credit Agreement (ESCO Corp), Credit Agreement (ESCO Corp)
Indebtedness. CreateThe Company will not, incurand will not permit any of its Subsidiaries to, assume incur or suffer to exist any Indebtedness, exceptassume:
(a) any Indebtedness under if (i) either (A) immediately before giving effect to the Loan Documents;
incurrence or assumption of such Indebtedness there exists a Default or Event of Default or (B) immediately after giving effect to the incurrence or assumption of such Indebtedness after giving effect to the application of the proceeds thereof, there exists a Default or Event of Default or (ii) based on calculations made by the Company on a Pro Forma Basis after giving effect to such incurrence or assumption and as if such incurrence or assumption had occurred on the first day of the respective Calculation Period, a Default or Event of Default would have existed during the Test Period last reported (or required to be reported pursuant to Section 6.11(a) or (b), as the case may be) Indebtedness set forth on Schedule 8.03 (and renewalsprior to the date of the respective incurrence or assumption in respect of, refinancings and extensions thereof)the Financial Covenants; provided that the foregoing provisions of this Section 7.02(a) shall not apply to (ix) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, accrued expenses and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;
(c) intercompany Indebtedness among the Borrower and its Subsidiaries;
(d) obligations (contingent or otherwise) existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person current trade accounts payable incurred in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
extent that any such amounts constitute Indebtedness); (e) purchase money Indebtedness, subject to the limitations set forth in Section 8.01(i);
(fy) Indebtedness existing in or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z);
(g) other Indebtedness as long as after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01; and
(h) Guarantees under Interest Rate Protection Agreements and Other Hedging Agreements entered into with respect to other Indebtedness permitted under this Section 8.03Agreement and (z) accrued and deferred management fees under any Management Agreement (to the extent that any such amounts constitute Indebtedness); or
(b) any Contingent Obligations (excluding Contingent Obligations relating to Customary Non-Recourse Exclusions until a personal recourse claim is made with respect thereto, and then shall be included only to the extent of the amount of such claim that is reasonably expected to be incurred) of the Company in respect of Non-Recourse Indebtedness, if the aggregate amount of such Contingent Obligations that are incurred by the Company in respect of Non-Recourse Indebtedness after the Closing Date and remain outstanding exceeds 5% of the Adjusted Total Assets of the Company.
Appears in 3 contracts
Samples: Credit Agreement (Host Hotels & Resorts L.P.), Credit Agreement (Host Hotels & Resorts L.P.), Credit Agreement (Host Hotels & Resorts L.P.)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness, except:
(a) Indebtedness under (other than as described in Section 6.01(b) below) existing or committed on the Closing Date (provided, that any such Indebtedness (x) that is owed to any person other than Parent or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Part A of Schedule 6.01 and (y) that is owed to Parent or one or more of its Subsidiaries in excess of $5,000,000 shall be set forth on Part B of Schedule 6.01) and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (1) any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan DocumentsParty to any Subsidiary that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(e) and (2) any Permitted Refinancing Indebtedness at any time incurred with respect to any Indebtedness described in this Section 6.01(a) outstanding on the Closing Date (or an issue of Permitted Refinancing Indebtedness incurred in respect thereof or prior to the incurrence of such Permitted Refinancing Indebtedness) that is owing to Parent or a Subsidiary may only be owed to Parent or its respective Subsidiary to which the Indebtedness described in clause (y) above outstanding on the Closing Date was owed;
(b) Indebtedness set forth on Schedule 8.03 created hereunder (including pursuant to Section 2.21, Section 2.22 and renewals, refinancings and extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if anySection 2.23) and subordination (if any), under the other Loan Documents and other material terms taken as a whole, of any Refinancing Notes incurred to Refinance such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rateIndebtedness;
(c) intercompany Indebtedness among the Borrower and its Subsidiaries;
(d) obligations (contingent of Parent or otherwise) existing or arising under any Swap Contract, provided that (i) such obligations are (or were) Subsidiary pursuant to Hedging Agreements entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting partyspeculative purposes;
(e) purchase money Indebtedness, subject to the limitations set forth in Section 8.01(i);
(f) Indebtedness existing in or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z);
(g) other Indebtedness as long as after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01; and
(h) Guarantees with respect to Indebtedness permitted under this Section 8.03.
Appears in 3 contracts
Samples: Credit Agreement (Jazz Pharmaceuticals PLC), Credit Agreement (Jazz Pharmaceuticals PLC), Credit Agreement (Jazz Pharmaceuticals PLC)
Indebtedness. Create, incur, assume assume, or suffer to exist any Indebtedness, except:
(ai) Indebtedness Obligations owing to Agent or any Lender under this Agreement or any of the other Loan Documents;
(bii) Indebtedness set forth on Schedule 8.03 (under the 2013 Indenture and renewals, refinancings and extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal any extension or extension except by an amount equal refinancing thereof pursuant to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest ratePermitted Refinancing Indenture Documents;
(ciii) intercompany Indebtedness among existing on the Borrower date of this Agreement and its Subsidiarieslisted on Schedule 8.2.2;
(div) obligations Permitted Purchase Money Indebtedness and Capital Lease Obligations (to the extent permitted by the definition of Permitted Purchase Money Indebtedness);
(v) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or otherwise) existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person collection in the ordinary course of business business;
(vi) Guaranties of any Indebtedness permitted hereunder;
(vii) Indebtedness in respect of intercompany loans that do not constitute Restricted Investments under clauses (i), (ii) or (xii) of the definition of Restricted Investment;
(viii) Indebtedness consisting of the deferred purchase price for power or insurance premiums pursuant to any provision in a power contract or insurance policy (or related agreement) that permits payment of a portion thereof to be deferred;
(ix) Indebtedness incurred to repurchase stock to the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated extent permitted by such Person, or changes in the value of securities issued by such Person, subsection 8.2.5;
(x) Derivative Obligations entered into for bona fide hedging purposes and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting partyspeculative purposes;
(exi) purchase money Indebtedness, subject Indebtedness to the limitations set forth extent not included in clauses (i) through (x) above, which is permitted under (a) Section 8.01(i);
4.06 of the 2013 Indenture as in effect on the Second Restatement Effective Date or (fb) Indebtedness existing any debt covenant contained in or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z);
(g) other Indebtedness as Permitted Refinancing Indenture Documents so long as after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject such debt covenants are reasonably acceptable to the limitations set forth in Section 8.01Agent and Majority Lenders; and
(hxii) Guarantees with respect to renewals, extensions, and refinancings of Indebtedness permitted under by this Section 8.03subsection 8.2.2; provided that any such renewal, extension, or refinancing is in an aggregate principal amount not greater than the principal amount of, and is on terms no less favorable taken as a whole to any Borrower obligated thereunder, including as to weighted average maturity and final maturity, than the Indebtedness being renewed, extended, or refinanced. Borrowers shall cause any agreements in respect of indebtedness secured by any Xxxxxxxx's real property to contain provisions permitting Agent to access the premises in connection with the exercise of its remedies upon default (such provisions to be consistent with the provisions attached hereto as Exhibit J).
Appears in 2 contracts
Samples: Loan and Security Agreement (Century Aluminum Co), Loan and Security Agreement (Century Aluminum Co)
Indebtedness. CreateNo Loan Party shall, and no Loan Party shall permit any of its Subsidiaries to, at any time create, incur, assume or suffer to exist any Indebtedness, except:
(ai) Indebtedness under the Loan Documents;
(bii) Existing Indebtedness as set forth on Schedule 8.03 7.2(a) (and renewalsincluding any extensions, refinancings and extensions or renewals thereof); provided there is no increase in the amount thereof or other significant change in the terms thereof unless otherwise specified on Schedule 7.2(a);
(iii) Capitalized and operating leases;
(iv) Indebtedness secured by Purchase Money Security Interests not exceeding $10,000,000.00;
(v) Indebtedness of a Loan Party to another Loan Party which is subordinated pursuant to the Intercompany Subordination Agreement;
(vi) Indebtedness for borrowed money which is subordinated to the Obligations pursuant to a subordination agreement on terms and conditions satisfactory to the Administrative Agent in its sole discretion, or unsecured Indebtedness for borrowed money, provided that (i) the principal amount of any such Indebtedness coming due prior to April 1, 2013, when added to the amount of such dividends and distributions (including stock repurchases) paid as permitted pursuant to Section 7.2(e)(ii) and the amount of repayments, redemptions and repurchases of Indebtedness is paid as permitted pursuant to Section 7.2(n)(ii) shall not increased exceed in the aggregate $50,000,000.00; and provided further that (A) at the time of such refinancing, renewal incurrence there does not exist any Event of Default or extension except by an amount equal to a reasonable premium or other reasonable amount paidPotential Default, and fees and expenses reasonably incurred(B) after giving effect thereto, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties would remain in compliance with clauses (o), (p) and their Subsidiaries or the Lenders than the terms (s) of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest ratethis Section 7.2;
(cvii) intercompany Any (A) Lender Provided Interest Rate Hedge, (B) other Interest Rate Hedge approved by the Administrative Agent, for or (C) Indebtedness among the Borrower and its Subsidiaries;
(d) obligations (contingent or otherwise) existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) purchase money Indebtedness, subject to the limitations set forth in Section 8.01(i);
(f) Indebtedness existing in or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z);
(g) other Indebtedness as long as after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01; and
(h) Guarantees with respect to Indebtedness permitted under this Section 8.03Other Lender Provided Financial Services Product.
Appears in 2 contracts
Samples: Credit Agreement (Gsi Commerce Inc), Credit Agreement (Gsi Commerce Inc)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness of the Borrower existing on the Closing Date and set forth on in Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) the amount of such Indebtedness is thereof on terms and conditions not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no materially less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest ratedebtor(s));
(c) intercompany Indebtedness among the Borrower and its Subsidiariespermitted under Section 8.02(d);
(d) obligations (contingent or otherwise) of a Loan Party or any Subsidiary existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) purchase money IndebtednessIndebtedness (including obligations in respect of Capital Leases or Synthetic Leases) hereafter incurred by a Loan Party or any of its Subsidiaries to finance the purchase of fixed assets, subject to and renewals, refinancings and extensions thereof, provided that (i) the limitations set forth total of all such Indebtedness for all such Persons taken together shall not exceed an aggregate principal amount of $5,000,000 at any one time outstanding; (ii) such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed; (iii) no such Indebtedness shall be refinanced for a principal amount in Section 8.01(i)excess of the principal balance outstanding thereon at the time of such refinancing;
(f) Indebtedness existing that may exist or may be deemed to exist under the Lotronex® Acquisition Documents, the Entocort® EC Distribution Agreement, the Proleukin® Transaction Documents, the 1996 License Agreement and any other agreements providing for indemnification, purchase price adjustments and similar obligations (including Earn-Out Obligations) in connection with the lease, license, purchase or relating sale of assets effected in accordance with the requirements of this Agreement;
(g) to real estate acquired the extent constituting Indebtedness, agreements to finance the deferred payment of premiums owing by a Loan Party or any of its Subsidiaries under any insurance policies required hereunder or under the other Loan Documents or obtained in the ordinary course of business;
(h) (A) to the extent constituting Indebtedness, obligations under Cash Management Agreements and (B) Indebtedness incurred by a Subsidiary for transmissionLoan Party or any of its Subsidiaries in respect of netting services, distribution or right-of-way purposes or overdraft protections and similar arrangements in each case in connection with its usual operations, subject to the limitations set forth in Section 8.01(z);cash management or deposit accounts.
(gi) other unsecured Indebtedness as long as of the Loan Parties and their Subsidiaries in an aggregate principal amount for all such Indebtedness not to exceed $7,500,000 at any one time outstanding; provided, that (i) no Default or Event of Default exists prior to or immediately after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01incurrence of such Indebtedness and (ii) if such Indebtedness results from seller financing, such Indebtedness is not evidenced by a demand note but rather has a stated maturity; and
(hj) Guarantees with respect to Indebtedness permitted under clauses (a) through (i) of this Section 8.03.
Appears in 2 contracts
Samples: Credit Agreement (Prometheus Laboratories Inc), Credit Agreement (Prometheus Laboratories Inc)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) intercompany Indebtedness set forth among members of the Consolidated Group, provided however, that if the Borrower or any Subsidiary Guarantor is the obligor on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) the amount of such Indebtedness and any other member of the Consolidated Group (other than the Borrower or a Subsidiary Guarantor) is not increased at the time of obligee thereof, such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, Indebtedness must be unsecured and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect expressly subordinated to the Loan Parties prior payment in full in cash of all Obligations under subordination terms reasonably acceptable to the Administrative Agent and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rateRequired Lenders;
(c) intercompany Indebtedness among the Borrower and its Subsidiaries;
(d) obligations (contingent or otherwise) of a Loan Party or any Subsidiary existing or arising under any Swap Contract, ; provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) purchase money Indebtedness, subject to the limitations set forth in Section 8.01(i);
(f) Indebtedness existing in or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z);
(gd) other Indebtedness as long as after giving effect thereto the incurrence of such Indebtedness will not cause, on a pro forma basis, a Default under the Loan Documents, including the financial covenants in Section 8.11; and
(e) Guaranties of the foregoing; provided that, a Subsidiary cannot guaranty borrowed money Indebtedness owed by the Parent Entity, the Borrower is in compliance with the financial covenant in Section 8.11 on or any other Loan Party unless such Subsidiary is, or simultaneously becomes, a Pro Forma Basis, subject to the limitations Subsidiary Guarantor as set forth in Section 8.01; and
(h) Guarantees with respect to Indebtedness permitted under this Section 8.037.13.
Appears in 2 contracts
Samples: Credit Agreement (Phillips Edison Grocery Center REIT III, Inc.), Credit Agreement (Phillips Edison Grocery Center Reit Ii, Inc.)
Indebtedness. CreateNo Credit Party shall, and no Credit Party shall permit any Subsidiary to, create, incur, assume assume, guarantee, or suffer be or remain liable with respect to exist any Indebtedness, exceptother than the following:
7.1.1. the Obligations;
7.1.2. existing Indebtedness listed on Schedule 5.19 (a) Indebtedness under the Loan Documentscaption “Other Indebtedness”) and any Permitted Refinancings thereof;
(b) Indebtedness set forth on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) 7.1.3. obligations of the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Credit Parties and their Subsidiaries or the Lenders than the terms arising out of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;
(c) intercompany Indebtedness among the Borrower and its Subsidiaries;
(d) obligations (contingent or otherwise) existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person Contract with financial institutions in connection with bona fide hedging activities in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting partyspeculative purposes;
7.1.4. current liabilities on open accounts for the purchase price of services, materials, and supplies incurred by a Credit Party or Subsidiary in the ordinary course of business (e) not as a result of borrowing), so long as all of such open account Indebtedness shall be paid promptly and discharged when due or in conformity with customary trade terms and practices, except for any such unpaid open account Indebtedness that is being contested in good faith by a Credit Party or Subsidiary, as to which adequate reserves required by GAAP have been established and are being maintained, and as to which no Lien has been placed on any property of such entity;
7.1.5. endorsement of items for deposit or collection of commercial paper received in the ordinary course of business;
7.1.6. guaranties by any Credit Party or Subsidiary of Indebtedness of any Credit Party that is permitted to be incurred hereunder, and any Permitted Refinancings thereof;
7.1.7. Indebtedness owed to insurance carriers and incurred in the ordinary course of business to finance insurance premiums of any Credit Party or Subsidiary;
7.1.8. Indebtedness in respect of performance and surety, stay, appeal and performance bonds, in each case in the ordinary course of business, including to conduct business, in respect of workers compensation claims, health, disability or other employee benefits or property, casualty, liability or unemployment insurance or self-insurance, other social security Laws or regulations or to comply with Laws, in the ordinary course of business;
7.1.9. Capitalized Lease Obligations and other purchase money Indebtedness, subject Indebtedness in an aggregate principal amount not to the limitations set forth exceed $200,000 in Section 8.01(i)any twelve-month period;
(f) 7.1.10. Indebtedness existing in or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or respect of netting services and overdraft protections in connection with its usual operations, subject to deposit accounts incurred in the limitations set forth in Section 8.01(z);
(g) other Indebtedness as long as after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01ordinary course of business; and
(h) Guarantees with respect to Indebtedness permitted under this Section 8.03.
Appears in 2 contracts
Samples: Loan Agreement (Banzai International, Inc.), Loan Agreement (7GC & Co. Holdings Inc.)
Indebtedness. Create(a) Neither the Borrower nor any of the Subsidiaries shall directly or indirectly create, incur, assume or suffer otherwise become or remain directly or indirectly liable with respect to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness incurrence of which would cause the Borrower to violate the financial covenant set forth in Section 6.12 (giving effect to such incurrence of Indebtedness on Schedule 8.03 a pro forma basis as if such incurrence (and renewalsthe application of any proceeds therefrom, refinancings and extensions thereof); provided that (iincluding the repayment of any Indebtedness with the proceeds of the Indebtedness being so incurred) occurred on the amount first day of the applicable four fiscal quarter period ended immediately prior to such incurrence) to the extent such Section is in effect as of the date of such determination (or would be in effect after giving effect to such incurrence of Indebtedness). It is understood and agreed that any Indebtedness is not increased incurred under Section 6.01(a) of the Existing Credit Agreement, to the extent such Indebtedness was, at the time of such refinancingincurrence, permitted to be so incurred thereunder, shall be deemed to have been incurred under, and in compliance with, this Section 6.01(a) as of the Restatement Effective Date.
(b) Neither the Borrower nor any of its Subsidiaries shall at any time permit the sum, without duplication, of (i) all Indebtedness of the Borrower and the Subsidiaries secured by Liens plus (ii) all Indebtedness of the Subsidiaries (including Subsidiaries acquired after the Effective Date) to exceed $500,000,000 at any time outstanding.
(c) Notwithstanding anything to the contrary in paragraph (b) of this Section 6.01, the following Indebtedness of the Borrower and the Subsidiaries (including Subsidiaries acquired after the Effective Date) shall not be prohibited by Section 6.01(b) and shall not be included in calculating the levels of Indebtedness permitted under Section 6.01(b) regardless of whether such Indebtedness is secured as permitted by Section 6.02:
(i) (x) Indebtedness created under the Loan Documents and (y) other Indebtedness existing on the Effective Date and set forth in Schedule 6.01 and extensions, renewals and replacements of any such Indebtedness, provided that such extending, renewal or extension except replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the original Indebtedness being extended, renewed or replaced (other than in the case of Guarantees otherwise permitted by clause (iii) of this Section 6.01(c)), (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), (C) shall not have an amount equal earlier maturity date or shorter weighted average life to maturity than the Indebtedness being extended, renewed or replaced and (D) shall be subordinated to the Obligations to the same extent as the Indebtedness being extended, renewed or replaced, if applicable;
(ii) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary, provided that (A) Indebtedness of any Subsidiary (other than a reasonable premium Loan Party) owing to any Loan Party shall be subject to Section 6.04 and (B) Indebtedness of the Borrower to any Subsidiary or of any other reasonable amount paidLoan Party to any other Subsidiary (other than a Loan Party) shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent;
(iii) Guarantees by the Borrower of Indebtedness of any Subsidiary, and fees by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed shall not be prohibited by this Section (other than clause (c)(ii)) and expenses reasonably incurred(B) Guarantees by any Loan Party of Indebtedness of any Subsidiary (other than a Loan Party) shall be subject to Section 6.04;
(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 that is assumed by the Borrower or any Subsidiary or that remains Indebtedness of an acquired entity in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, acquisition of any such refinancing, renewal assets or extension are no less favorable in secured by a Lien on any material respect such assets prior to the Loan Parties and their Subsidiaries acquisition thereof, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the Lenders than the terms completion of such construction or improvement, and (B) extensions, renewals and replacements of any agreement or instrument governing such Indebtedness so long as the Indebtedness being refinancedoutstanding principal amount of such extensions, renewed or extended renewals and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness replacements does not exceed the then applicable market principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest rateand premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (iv) incurred after the Effective Date shall not exceed $100,000,000 at any time outstanding;
(c) intercompany Indebtedness among the Borrower and its Subsidiaries;
(d) obligations (contingent or otherwise) existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) purchase money Indebtedness, subject to the limitations set forth in Section 8.01(i);
(fv) Indebtedness existing in or relating to real estate acquired respect of Swap Agreements permitted by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z);
(g) other Indebtedness as long as after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.016.06; and
(hvi) Guarantees with Indebtedness in respect of any financing or capital lease financing relating to Indebtedness permitted under this Section 8.03the Borrower’s or the Subsidiaries’ sea vessels in an amount not to exceed $75,000,000 at any time outstanding.
Appears in 2 contracts
Samples: Credit Agreement (Usg Corp), Credit Agreement (Usg Corp)
Indebtedness. Create, incur, assume or suffer to exist any IndebtednessIndebtedness or issue any Disqualified Equity Interest, exceptother than:
(a) Indebtedness arising under the Loan Documents;
(b) Indebtedness existing on the date hereof set forth on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any7.03(b) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest ratePermitted Refinancing thereof;
(c) intercompany Guarantees by a Loan Party and its Subsidiaries in respect of Indebtedness among the Borrower otherwise permitted hereunder of a Loan Party and its Subsidiaries;
(d) obligations Indebtedness reflecting Investments in the form of loans or advances to the extent permitted under Section 7.02(f), (contingent h), (k) or otherwise) existing or arising under any Swap Contract(l), provided that any such Indebtedness owed by a Loan Party shall be subject to the intercompany subordination agreement referenced in Section 7.02(k) hereof;
(i) Capitalized Leases and purchase money obligations of any Loan Party and its Subsidiaries financing the acquisition, construction, repair, replacement or improvement of fixed or capital assets; provided that such obligations are Indebtedness is incurred concurrently with or within 90 days after the applicable acquisition, construction, repair, replacement or improvement, (ii) provided that the aggregate principal amount of Indebtedness at any one time outstanding shall not exceed $5,000,000;
(f) Indebtedness in respect of Swap Contracts designed to hedge against any Loan Party’s or were) entered into by such Person any of its Subsidiaries’ exposure to interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business for the purpose of directly mitigating risks associated with relating to liabilities, commitments, investments, assets, commitments or property assets held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, Person and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) purchase money Indebtedness, subject to the limitations set forth in Section 8.01(i);
(f) Indebtedness existing in or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z)speculative purposes;
(g) other Indebtedness to current or former officers, directors, managers and employees, their respective estates, spouses or former spouses to finance the simultaneous purchase or redemption of Equity Interests of the Company permitted by Section 7.06;
(h) Indebtedness of a Person that becomes a Subsidiary of the Company after the date hereof in connection with a Permitted Acquisition or an acquisition made as long an Investment permitted by Section 7.02(l); provided that such Indebtedness is existing at the time such Person becomes a Subsidiary of the Company, was not incurred solely in contemplation of such Person’s becoming a Subsidiary of the Company, and is unsecured except as after giving effect thereto the Borrower is in compliance with the financial covenant in otherwise permitted by Section 8.11 on a Pro Forma Basis, subject 7.01(l);
(i) to the limitations set forth extent any of the following constitute Indebtedness, deferred purchase price payment obligations, purchase price adjustments, contingent consideration payments, earn-outs and similar obligations in connection with Permitted Acquisitions or an acquisition made as an Investment permitted by Section 8.017.02(l) and deferred payment obligations in connection with lateral hires of individual employees and consultants;
(j) Indebtedness in respect of surety bonds, performance bonds and other similar obligations incurred in the ordinary course of business of the Company and its Subsidiaries; and
(hk) Guarantees with respect other unsecured Indebtedness of the Loan Parties and their Subsidiaries in an aggregate principal amount at any time outstanding not to Indebtedness permitted under this Section 8.03exceed $10,000,000.
Appears in 2 contracts
Samples: Credit Agreement (Cra International, Inc.), Credit Agreement (Cra International, Inc.)
Indebtedness. Create, incur, assume or suffer to exist any IndebtednessIndebtedness to a Person other than a Loan Party, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness set forth listed on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate7.03;
(c) intercompany Guarantees of the Company or any Subsidiary in respect of Indebtedness among otherwise permitted hereunder of the Borrower and its SubsidiariesCompany or any Subsidiary;
(d) obligations (contingent or otherwise) of the Company or any Subsidiary existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party”;
(e) Attributable Indebtedness and purchase money Indebtedness, subject to obligations for fixed or capital assets within the limitations set forth in Section 8.01(i7.01(f);
(f) Indebtedness existing secured by Liens described in or relating to real estate acquired by a Loan Party or a Subsidiary for transmissionSections 7.01(a), distribution or right-of-way purposes or in connection with its usual operations(c), subject to the limitations set forth in Section 8.01(z(e) and (h);
(g) other Consolidated Priority Indebtedness as long as in an aggregate principal amount outstanding at any time not to exceed 10% of Consolidated Net Worth and Tax Arrangement Priority Indebtedness in an aggregate principal amount outstanding at any time not to exceed 10% of Consolidated Net Worth, provided, in each case, that the Leverage Ratio (calculated on a pro-forma basis after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth incurrence of such Indebtedness) is less than 3.00 to 1.00; provided that, to the extent Indebtedness incurred pursuant to this Section 7.03(g) was permitted hereunder at the time of the incurrence thereof, such Indebtedness will continue to be permitted hereunder notwithstanding a subsequent decrease in Section 8.01Consolidated Net Worth; andor
(h) Guarantees with respect other Indebtedness not otherwise permitted which is not Consolidated Priority Indebtedness, provided that after giving pro forma effect to the incurrence of such Indebtedness permitted under this Section 8.03and the use of proceeds thereof, no Default or Event of Default shall have occurred and be continuing.
Appears in 2 contracts
Samples: Credit Agreement (Aecom Technology Corp), Credit Agreement (Aecom Technology Corp)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness of the Borrower and its Subsidiaries set forth on in Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate8.03;
(c) intercompany Indebtedness among the Borrower and its Subsidiariespermitted under Section 8.02;
(d) obligations (contingent or otherwise) of the Borrower or any Subsidiary existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) purchase money IndebtednessIndebtedness (including obligations in respect of Capital Leases or Synthetic Leases) of the Borrower or any of its Subsidiaries (whether incurred before or after the Closing Date) to finance the purchase and/or construction of fixed assets, subject to and renewals, refinancings and extensions thereof, provided that (i) the limitations set forth total of all such Indebtedness (including all refinanced Indebtedness incurred in Section 8.01(i)accordance with clause (iii) below) for all such Persons taken together shall not exceed an aggregate principal amount of $55,000,000 at any one time outstanding; (ii) such Indebtedness when incurred shall not exceed the purchase price or construction cost of the asset(s) financed; and (iii) no such Indebtedness shall be refinanced for a principal amount in excess of the greater of (x) the principal balance outstanding thereon at the time of such refinancing or (y) the fair market value of such asset(s) financed;
(f) Indebtedness existing in or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z)unsecured Subordinated Indebtedness;
(g) Indebtedness of Foreign Subsidiaries in an aggregate principal amount not to exceed 20,000,000 Euros pursuant to a factoring program entered into by such Foreign Subsidiaries;
(h) other unsecured Indebtedness as long as after giving effect thereto of the Borrower is and its Subsidiaries in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject an aggregate principal amount not to the limitations set forth in Section 8.01exceed $5,000,000 at any one time outstanding; and
(hi) Guarantees with respect unsecured Indebtedness of the Borrower under the Convertible Notes Documents in an aggregate principal amount not to Indebtedness permitted under this Section 8.03exceed $200,000,000.
Appears in 2 contracts
Samples: Credit Agreement (Wright Medical Group Inc), Credit Agreement (Wright Medical Group Inc)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness set forth (other than by reference to this Section 8.03 (or any sub-clause hereof)) existing on the Effective Date and described on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties Disclosure Letter and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest ratePermitted Refinancings thereof;
(c) (i) intercompany Indebtedness among the Borrower permitted under Section 8.02 (other than by reference to this Section 8.03 (or any sub-clause hereof)) and its Subsidiaries(ii) Guarantees permitted by Section 8.02 (other than by reference to this Section 8.03 (or any subclause hereof));
(d) obligations (contingent or otherwise) of any Loan Party or any Subsidiary existing or arising under any Swap Contract; provided, provided that that, (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) purchase money IndebtednessIndebtedness (including obligations in respect of Capital Leases or Synthetic Leases) incurred by any Loan Party or any of their respective Subsidiaries to finance the acquisition, subject to purchase, construction or improvement of fixed assets, and renewals, refinancings and extensions thereof; provided, that, (i) such Indebtedness when incurred shall not exceed the limitations set forth cost of acquiring, purchasing, constructing or improving such asset(s), (ii) no such Indebtedness shall be refinanced for a principal amount in excess of the principal balance outstanding thereon, plus any fees and expenses incurred in connection with such refinancing and any reasonable premium paid in connection with such refinancing, (iii) the aggregate outstanding principal amount of all Indebtedness outstanding in reliance on this clause (e) shall not exceed $4,000,000 at any one time outstanding and (iv) the aggregate outstanding principal amount of all Indebtedness outstanding in reliance on this clause (e), Section 8.01(i8.03(g) and Section 8.03(h), when taken together, shall not exceed $12,000,000 at any one time outstanding;
(f) unsecured Indebtedness existing in or relating to real estate acquired by a Loan Party or a Subsidiary for transmissionrespect of netting services, distribution or right-of-way purposes or overdraft protections, employee credit card programs, automatic clearinghouse arrangements and similar arrangements in each case in connection with its usual operationsdeposit accounts and Indebtedness arising from the honoring of a bank or other financial institution of a check, subject to draft or similar instrument drawn against insufficient funds in the limitations set forth in Section 8.01(z)ordinary course of business; provided, that, (x) any such Indebtedness is extinguished within thirty (30) days and (y) the aggregate outstanding principal amount of such Indebtedness shall not exceed $500,000 at any one time outstanding;
(g) other Permitted Senior Revolving Credit Indebtedness as long as in an aggregate principal amount not to exceed at any one time outstanding $4,000,000 pursuant to one or more revolving credit facilities; provided, that, (x) no Default or Event of Default shall have occurred and be continuing both immediately before and immediately after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basiseffectiveness of any Permitted Senior Revolving Credit Documents, subject (y) prior to the limitations set forth incurrence of any such Indebtedness, (i) the Administrative Agent, the Loan Parties and the applicable Permitted Senior Revolving Credit Lender shall have entered into an intercreditor agreement reasonably satisfactory to the Administrative Agent pursuant to which (A) such Permitted Senior Revolving Credit Lender may be granted a first priority security interest only in the accounts receivable and/or inventory of Establishment Labs Sociedad Anonima and proceeds thereof (collectively, the “Permitted Senior Revolving Credit Priority Collateral”), (B) the Administrative Agent, on behalf of the Secured Parties, shall be granted a second priority security interest in the Permitted Senior Revolving Credit Priority Collateral, (C) the Administrative Agent, on behalf of the Secured Parties, shall maintain its first priority security interest in all other assets of the Loan Parties (other than Excluded Property) and (D) such Permitted Senior Revolving Credit Lender shall not be granted a security interest in any property of the Loan Parties other than the Permitted Senior Revolving Credit Priority Collateral and (ii) the Administrative Agent and the Loan Parties shall have entered into amendments, in each case in form and substance reasonably satisfactory to the Administrative Agent, to this Agreement and such other Loan Documents as required to, among other things, include in the Loan Documents such additional representations, warranties, covenants and defaults as are included in the applicable Permitted Senior Revolving Credit Documents (but not included in the Loan Documents at such time) and (z) the aggregate outstanding principal amount of all Indebtedness incurred in reliance on this clause (g), Section 8.018.03(e) and Section 8.03(h), when taken together, shall not exceed $12,000,000 at any one time outstanding;
(h) Indebtedness hereafter incurred by any Loan Party or any of their respective Subsidiaries to finance the purchase, construction or improvement of real property, and renewals and extensions thereof; provided, that, (i) such Indebtedness shall be secured only by real property (and, for the avoidance of doubt, by no other assets of any Loan Party or any Subsidiary), (ii) no such Indebtedness shall be refinanced for a principal amount in excess of the principal balance outstanding thereon at the time of such refinancing, plus any fees and expenses incurred in connection with such refinancing and any reasonable premium paid in connection with such refinancing, (iii) the aggregate outstanding principal amount of all Indebtedness incurred in reliance on this clause (h) shall not exceed $10,000,000 at any one time outstanding and (iv) the aggregate outstanding principal amount of all Indebtedness incurred in reliance on this clause (h), Section 8.03(e) and Section 8.03(g), when taken together, shall not exceed $12,000,000 at any one time outstanding;
(i) solely until the Funding Date, Indebtedness under the Existing Credit Agreement;
(j) accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of the Loan Parties and their respective Subsidiaries’ business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for in accordance with GAAP;
(k) Indebtedness consisting of guarantees resulting from the endorsement of negotiable instruments for collection in the ordinary course of business;
(l) other unsecured Indebtedness not permitted by any of the other clauses of this Section 8.03, in an aggregate principal amount not to exceed $500,000 at any one time outstanding;
(m) Indebtedness of any Person that becomes a Subsidiary after the Effective Date; provided, that, (i) 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 (ii) the aggregate principal amount of all such Indebtedness outstanding in reliance on this clause (m) shall not exceed $500,000 at any one time outstanding;
(n) unsecured Earn Out Obligations in connection with Permitted Acquisitions; and
(ho) Guarantees with respect unsecured Indebtedness of the Borrower owing to Indebtedness permitted under this Section 8.03(i) solely until August 1, 2019, JW Partners, LP pursuant to that certain Warrant Payment Agreement dated as of August 24, 2017 between the Borrower and JW Partners, LP in an aggregate amount not to exceed $1,589,488.64 at any one time outstanding, (ii) solely until August 1, 2019, JW Opportunities Master Fund, Ltd. pursuant to that certain Warrant Payment Agreement dated as of August 24, 2017 between the Borrower and JW Opportunities Master Fund, Ltd. in an aggregate amount not to exceed $529,829.55 at any one time outstanding, (iii) solely until August 1, 2019, Relativity Healthcare Fund, LLC pursuant to that certain Warrant Cancellation Agreement dated as of August 24, 2017 between the Borrower and Relativity Healthcare Fund, LLC in an aggregate amount not to exceed $141,287.55 at any one time outstanding and (iv) solely until September 24, 2017, Perceptive Credit Holdings, LP pursuant to that certain Warrant Repurchase Agreement dated as of August 24, 2017 between the Borrower and Perceptive Credit Holdings, LP in an aggregate amount not to exceed $2,400,000 at any one time outstanding.
Appears in 2 contracts
Samples: Credit Agreement (Establishment Labs Holdings Inc.), Credit Agreement (Establishment Labs Holdings Inc.)
Indebtedness. CreateThe Company will not, incurand will not permit any of its Subsidiaries to, assume incur or suffer to exist any Indebtedness, exceptassume:
(a) any Indebtedness under if (i) either (I) immediately before giving effect to the Loan Documents;
incurrence or assumption of such Indebtedness there exists a Default or Event of Default or (II) immediately after giving effect to the incurrence or assumption of such Indebtedness after giving effect to the application of the proceeds thereof, there exists a Default or Event of Default or (ii) based on calculations made by the Company on a Pro Forma Basis after giving effect to such incurrence or assumption and as if such incurrence or assumption had occurred on the first day of the respective Calculation Period, a Default or Event of Default would have existed during the Test Period last reported (or required to be reported pursuant to Section 6.11(a) or (b), as the case may be) Indebtedness set forth on Schedule 8.03 (and renewalsprior to the date of the respective incurrence or assumption in respect of, refinancings and extensions thereof)the Financial Covenants; provided that the foregoing provisions of this Section 7.02(a) shall not apply to (ix) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, accrued expenses and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;
(c) intercompany Indebtedness among the Borrower and its Subsidiaries;
(d) obligations (contingent or otherwise) existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person current trade accounts payable incurred in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
extent that any such amounts constitute Indebtedness); (e) purchase money Indebtedness, subject to the limitations set forth in Section 8.01(i);
(fy) Indebtedness existing in or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z);
(g) other Indebtedness as long as after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01; and
(h) Guarantees under Interest Rate Protection Agreements and Other Hedging Agreements entered into with respect to other Indebtedness permitted under this Section 8.03Agreement; and (z) accrued and deferred management fees under any Management Agreement (to the extent that any such amounts constitute Indebtedness); or
b) any Contingent Obligations (excluding Contingent Obligations relating to Customary Non-Recourse Exclusions except to the extent a personal recourse claim is made in connection therewith) of the Company in respect of Non-Recourse Indebtedness, if the aggregate amount of such Contingent Obligations that are incurred by the Company in respect of Non-Recourse Indebtedness after the Closing Date and remain outstanding exceeds 3% of the Adjusted Total Assets of the Company.
Appears in 2 contracts
Samples: Credit Agreement (Host Hotels & Resorts, Inc.), Credit Agreement (Host Hotels & Resorts, Inc.)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness set forth on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;
(c) intercompany Indebtedness among the Borrower and its Subsidiaries;
(d) obligations (contingent or otherwise) existing or arising under any Swap Contract; provided, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” ”; and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(ec) purchase money Indebtednesswithout duplication, subject to the limitations guaranties by a Consolidated Party in respect of any Indebtedness otherwise permitted hereunder;
(d) Indebtedness set forth in Section 8.01(iSchedule 7.02 (and renewals, refinancing and extensions thereof);
(f) ; provided, that the amount of such Indebtedness existing in is not increased at the time of such refinancing, renewal or relating extension except by an amount equal to real estate acquired by a Loan Party reasonable premium or a Subsidiary for transmissionother reasonable amount paid, distribution or right-of-way purposes or and fees and expenses reasonably incurred, in connection with its usual operationssuch refinancing and by an amount equal to any existing commitments utilized thereunder (for purposes of clarity, subject to it is understood that Funded Debt on Schedule 7.02 is included in calculating the limitations financial covenants in Section 7.09); and
(e) other Funded Debt (including any portion of any renewal, financing, or extension of Indebtedness set forth in Section 8.01(z);
Schedule 7.02 to the extent such portion does not meet the criteria set forth in the proviso of clause (gd) other Indebtedness above) as long as as, after giving effect thereto thereto, the Borrower is Consolidated Parties are in compliance with the financial covenant covenants in Section 8.11 7.09, on a Pro Forma Basispro forma basis as if such Indebtedness had been incurred as of the last day of the most recent fiscal quarter for which financial statements have been delivered pursuant to Section 6.01 (or if such Indebtedness exists as of the Closing Date, subject to the limitations set forth in Section 8.01; and
(h) Guarantees with respect to Indebtedness permitted under this Section 8.03as of March 31, 2021).
Appears in 2 contracts
Samples: Credit Agreement (Omega Healthcare Investors Inc), Credit Agreement (Omega Healthcare Investors Inc)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness set forth on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) Indebtedness outstanding on the amount of such Indebtedness is not increased at the time of such refinancingdate hereof and listed on Schedule 7.03(b)(i) and any refinancings, renewal refundings, renewals or extension except by an amount equal to a reasonable premium or other reasonable amount paidextensions thereof, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) all cross-collateralized and cross-defaulted Indebtedness outstanding on the terms relating to principal amount, amortization, maturity, collateral (if anydate hereof and listed on Schedule 7.03(b)(ii) and subordination (if any)any refinancings, and other material terms taken as a wholerefundings, of any such refinancing, renewal renewals or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest ratethereof;
(c) intercompany Guarantees by any Borrower or any Subsidiary in respect of Indebtedness among otherwise permitted hereunder of the Borrower and its SubsidiariesBorrowers or any Subsidiary;
(d) obligations (contingent or otherwise) of the Borrowers or any of their Subsidiaries existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” (it being understood that, notwithstanding the foregoing, interest rate Swap Contracts which have the effect of converting a fixed rate to a floating rate shall be permitted to the extent such Swap Contract (or the notional amount thereof) is reflected in calculations made under Section 7.11(g)); and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) Indebtedness in respect of capital leases and purchase money Indebtedness, subject to the limitations set forth in Section 8.01(i)obligations for fixed or capital assets;
(f) Indebtedness existing in or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or rightIntra-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z)Company Debt;
(g) other Recourse Indebtedness as of the Borrowers, the Guarantors and their Subsidiaries (whether secured or unsecured) so long as after giving effect thereto the Borrower is in compliance with Borrowing Group’s Share (excluding the financial covenant in Section 8.11 on a Pro Forma Basis, subject to Commitments and the limitations Total Outstandings) does not exceed the limitation set forth in Section 8.01; and7.11(h);
(h) Guarantees with respect secured Indebtedness of the Borrowers, the Guarantors and their Subsidiaries which is not Recourse Indebtedness of the Borrowers, the Guarantors or any of their Subsidiaries;
(i) Indebtedness of the Borrowers and their Subsidiaries consisting of “exceptions to nonrecourse” guaranties of non-recourse Indebtedness otherwise permitted under this Section 7.03 or of other Indebtedness permitted under this Section 8.037.03; provided, that, “exceptions to non-recourse” shall include the types of additional exceptions customarily required by Federal National Mortgage Association or Federal Home Loan Mortgage Corporation from time to time in their standard form loan documentation and customary contingent environmental indemnities required in connection with Non-Recourse Indebtedness permitted hereunder;
(j) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and similar obligations and trade-related letters of credit, in each case, provided in the ordinary course of business, and any extension, renewal or refinancing thereof to the extent not provided to secure the repayment of other Indebtedness;
(k) Indebtedness under bonds supporting utility deposits or insurance or other comparable security deposits or property taxes, in each case incurred in the ordinary course of business;
(l) Indebtedness arising from the honoring of a check, draft or similar instrument against insufficient funds;
(m) Intentionally Omitted;
(n) customary title company indemnities required in connection with Non-Recourse Indebtedness permitted hereunder, Dispositions and acquisitions of property not prohibited hereunder;
(o) Indebtedness consisting of the financing of insurance premiums or otherwise arising in connection with insurance arrangements of the Borrowers or any of their Subsidiaries in the ordinary course of business; and
(p) endorsements for collection or deposit in the ordinary course of business.
Appears in 2 contracts
Samples: Senior Secured Credit Agreement (Aimco Properties L.P.), Senior Secured Credit Agreement (Aimco Properties Lp)
Indebtedness. CreateEach of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, at any time create, incur, assume or suffer to exist any Indebtedness, except:
(ai) Indebtedness under the Loan Documents;
(bii) Indebtedness set forth on Schedule 8.03 incurred with respect to Purchase Money Security Interests and Capitalized Leases as and to the extent permitted under Section 8.2.13 [Capital Expenditures and Leases];
(iii) Indebtedness of a Loan Party to another Loan Party which is subordinated pursuant to the Intercompany Subordination Agreement;
(iv) Indebtedness owing to Foreign Subsidiaries to the extent that such Indebtedness is subordinated to the Obligations pursuant to the Intercompany Subordination Agreement and renewals, refinancings and extensions thereofsuch Indebtedness does not exceed $50,000,000 outstanding in the aggregate at any time;(34); provided that
(v) Any (i) the amount of such Indebtedness is not increased at the time of such refinancingLender Provided Hedge, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) Other Hedging Transaction approved by the terms relating to principal amountAdministrative Agent and (iii) Indebtedness under any Other Lender Provided Financial Services Product; provided however, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries shall enter into a Lender Provided Hedge or the Lenders Other Hedging Transaction only for hedging (rather than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest ratespeculative) purposes;
(cvi) intercompany Guaranties of Indebtedness among of Foreign Subsidiaries as permitted by Section 8.2.3(iii) and (iv) [Guaranties];(35)
(vii) Indebtedness existing on the Borrower date hereof and its Subsidiariesset forth on Schedule 8.2.1 and Permitted Refinancings thereof;
(d) obligations (contingent or otherwise) existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) purchase money Indebtedness, subject to the limitations set forth in Section 8.01(i);
(fviii) Indebtedness existing in or relating to real estate acquired by a of any Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or any of its Subsidiaries as an account party in connection with its usual operations, subject to the limitations set forth in Section 8.01(z)respect of trade letters of credit;
(g) other Indebtedness as long as after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01; and
(h) Guarantees with respect to Indebtedness permitted under this Section 8.03.
Appears in 2 contracts
Samples: Credit Agreement (Crocs, Inc.), Credit Agreement (Crocs, Inc.)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) (i) Indebtedness set forth outstanding on the date hereof and listed on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amountany refinancings, amortizationrefundings, maturityrenewals or extensions of such Indebtedness (including subsequent refinancings, collateral (if any) refundings, renewals and subordination (if anyextensions), and other material terms taken as a whole, of any such refinancing, renewal or extension are provided that no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;Default would result therefrom.
(c) intercompany Guarantees of CSI, Borrower or any Subsidiary in respect of Indebtedness among the otherwise permitted hereunder of CSI, Borrower and its Subsidiariesor any Subsidiary;
(d) obligations (contingent or otherwise) of CSI or Borrower or any Subsidiary existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” ”; and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) Indebtedness of CSI, Borrower or any Subsidiary in respect of capital leases, Synthetic Lease Obligations and purchase money Indebtedness, subject to obligations for fixed or capital assets within the limitations set forth in Section 8.01(i); provided, however, that the aggregate amount of all such Indebtedness at any one time outstanding shall not exceed $10,000,000;
(f) other Recourse Indebtedness existing in of the Borrower or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with any of its usual operations, subject to the limitations set forth in Section 8.01(z)Subsidiaries;
(g) other Non-recourse Indebtedness as long as after giving effect thereto of the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01or any of its Subsidiaries (other than Xxxxxx or any Subsidiary thereof); and
(h) Guarantees with respect to intercompany Indebtedness that would constitute an Investment permitted under this Section 8.038.02(c).
Appears in 2 contracts
Samples: Credit Agreement (Cogdell Spencer Inc.), Credit Agreement (Cogdell Spencer Inc.)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness set forth outstanding on the Closing Date and listed on Schedule 8.03 (7.02 and renewalsany refinancings, refinancings and refundings, renewals or extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amountdirect or any contingent obligor with respect thereto is not changed, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, result of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any connection with such refinancing, refunding, renewing renewal or extending Indebtedness does not exceed the then applicable market interest rateextension;
(c) intercompany Indebtedness among in respect of Capitalized Leases, Synthetic Lease Obligations and purchase money obligations for fixed or capital assets within the Borrower and its Subsidiarieslimitations set forth in Section 7.01(i); provided, however, that the aggregate amount of all such Indebtedness at any one time outstanding shall not exceed $7,500,000;
(d) Intercompany Indebtedness permitted under Section 7.03;
(e) Guarantees of the Borrower or any Subsidiary in respect of Indebtedness otherwise permitted hereunder of the Borrower or any wholly-owned Subsidiary;
(f) Indebtedness of any Person that becomes a Subsidiary of the Borrower after the date hereof in a transaction permitted hereunder in an aggregate principal amount for all such Subsidiaries outstanding at any time not to exceed $5,000,000; provided that such Indebtedness is existing at the time such Person becomes a Subsidiary of the Borrower and was not incurred solely in contemplation of such Person’s becoming a Subsidiary of the Borrower;
(g) obligations (contingent or otherwise) existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, fluctuations in interest rates or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” foreign exchange rates and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(eh) purchase money Indebtedness, subject Indebtedness under the Foreign Obligation Loan Documents in an aggregate amount not to exceed the limitations set forth in Section 8.01(i)Dollar Equivalent of $15,000,000;
(fi) unsecured Indebtedness existing in respect of earn-outs, contingent liabilities in respect of any indemnification obligation, adjustments of purchase price or relating similar obligations owing to real estate acquired by a Loan Party sellers of assets or a Subsidiary for transmission, distribution Equity Interests to Borrower or right-of-way purposes or its Subsidiaries that are incurred in connection with its usual operations, subject to a Permitted Acquisition or other Investment otherwise permitted hereunder; provided that (i) the limitations set forth in Section 8.01(z);
aggregate principal amount of such Indebtedness shall not exceed $4,000,000 at any time outstanding and (gii) other Indebtedness as long as any payment of such obligations shall not be permitted if after giving effect thereto to such payment on a Pro Forma Basis (A) a Default or Event of Default exists or would result therefrom, or (B) the Borrower is Loan Parties would not be in compliance with the financial covenant covenants set forth herein, recomputed as of the end of the most recent Measurement Period;
(j) Indebtedness in Section 8.11 on respect of letters of credit, bank guarantees or similar instruments issued or created in the ordinary course of business, including in respect of workers’ compensation claims, health, disability or other employee benefits or insurance or other similar reimbursement-type obligations; provided that any reimbursement obligations in respect thereof are reimbursed within 30 days following the incurrence thereof;
(k) obligations in respect of performance, bid, appeal and surety bonds and performance and completion guarantees and similar obligations incurred in the ordinary course of business;
(l) Indebtedness of any Person that becomes a Subsidiary after the date hereof in an aggregate principal amount not to exceed $2,000,000 at any one time outstanding; provided that 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;
(m) Indebtedness (i) resulting from a bank or other financial institution honoring a check, draft or similar instrument in the ordinary course of business or (ii) arising under or in connection with cash management services in the ordinary course of business;
(n) Indebtedness consisting of the financing of insurance premiums payable within one (1) year;
(o) Disqualified Stock that is exchangeable or convertible only into unsecured, subordinated Indebtedness of the Borrower that is not Guaranteed by any Subsidiary of the Borrower;
(p) other Indebtedness subordinated to the Obligations in a manner and to an extent reasonably acceptable to the Administrative Agent in an aggregate principal amount not to exceed $2,000,000 at any one time outstanding; and
(q) other Indebtedness not contemplated by the above provisions in an aggregate principal amount not to exceed $10,000,000 at any time outstanding; provided that the Loan Parties are in Pro Forma Basis, subject to Compliance with each of the limitations financial covenants set forth in Section 8.01; and
(h) Guarantees with respect to Indebtedness permitted under this Section 8.037.11 at the time of incurrence thereof.
Appears in 2 contracts
Samples: Credit Agreement (Agilysys Inc), Credit Agreement (Agilysys Inc)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the Closing Date and listed on Schedule 7.02;
(c) Indebtedness in respect of Capitalized Leases, Synthetic Lease Obligations and purchase money obligations for fixed or capital assets within the limitations set forth in Section 7.01(i); provided, however, that the aggregate amount of all such Indebtedness at any one time outstanding shall not exceed $10,000,000;
(d) Guarantees of the Borrower or any Subsidiary Guarantor in respect of Indebtedness otherwise permitted hereunder of the Borrower or any other Subsidiary Guarantor;
(i) unsecured intercompany Indebtedness among the Borrower and the Subsidiary Guarantors, (ii) unsecured intercompany Indebtedness among the non-Loan Party Subsidiaries and (iii) unsecured intercompany Indebtedness of a non-Loan Party Subsidiary owing to the Borrower or a Guarantor, so long as no Event of Default exists immediately prior to and no Default would exist immediately after giving effect to such intercompany Indebtedness; provided that, in each case of Indebtedness incurred pursuant to clause (e)(i) or (e)(iii), such Indebtedness shall (1) to the extent required by the Administrative Agent, be evidenced by promissory notes which shall be pledged to the Administrative Agent as Collateral for the Secured Obligations in accordance with the terms of the Security Agreement, (2) be on Schedule 8.03 terms (including subordination terms) acceptable to the Administrative Agent and renewals(3) be otherwise permitted under the provisions of Section 7.03 (other than solely in reliance on clause (e) or (j) thereof) (such debt described in this clause (e), refinancings “Intercompany Debt”);
(f) unsecured Indebtedness of the Borrower or any Subsidiary in respect of performance bonds, bid bonds, appeal bonds, surety bonds and extensions thereofsimilar obligations, in each case provided in the ordinary course of business;
(g) Indebtedness relating to 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), in each case incurred in the ordinary course of business; provided that the amount of such Indebtedness is not in excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost of, such insurance for the year in which such Indebtedness is incurred and such Indebtedness is outstanding only during such year;
(h) [reserved];
(i) Indebtedness which represents an extension, refinancing, or renewal of any of the Indebtedness described in clauses (b), (c) and (m) hereof; provided that (i) the amount of such Indebtedness principal and the interest rate is not increased at the time of such refinancing, renewal or extension extension, except that the principal thereof may be increased by an amount equal to unpaid accrued interest and a reasonable premium or thereon plus other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal refinancing, renewal or extension,(ii) any Liens securing such Indebtedness are not extended to any existing commitments unutilized thereunder additional property of any Loan Party and such Indebtedness shall be secured on the same or junior basis to the Indebtedness that it refinances, (iiiii) the terms relating to principal amountdirect or any contingent obligor with respect thereto is not changed, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a wholeresult of or in connection with such refinancing, of any renewal or extension, (iv) such refinancing, renewal or extension are no less favorable does not result in any material respect to a shortening of the Loan Parties maturity of the Indebtedness so extended, refinanced or renewed and their Subsidiaries or the Lenders than (v) the terms of any such extension, refinancing, or renewal are not less favorable to the obligor thereunder than the original terms of such Indebtedness;
(j) Indebtedness arising from the endorsement of instruments for collection in the ordinary course of business;
(k) to the extent constituting Indebtedness, indemnification obligations incurred in connection with the Disposition of any business or assets permitted hereunder; and
(l) Indebtedness incurred by the Borrower or any of its Subsidiaries in a Permitted Acquisition solely to the extent constituting indemnity obligations or obligations in respect of purchase price (including unsecured earnout obligations);
(m) Indebtedness of a Person (other than a Loan Party or Subsidiary) outstanding or available to be borrowed or advanced (including, without limitation, under any factoring agreement not prohibited hereunder) as of the date such Person is acquired and becomes a Subsidiary or instrument governing is merged with or into or consolidated with a Loan Party or Subsidiary, in each case to the extent permitted hereunder (including, for the avoidance of doubt, any such Indebtedness being refinancedin connection with the Fyber Acquisition), renewed provided that (i) such Indebtedness was not incurred by such Person in connection with, or extended and the interest rate applicable in contemplation of, such merger or acquisition, (ii) with respect to any such refinancingPerson who becomes a Subsidiary, refunding(A) no Loan Party or other Subsidiary is an obligor in respect of such Indebtedness, renewing or extending and (B) to the extent such Indebtedness is permitted to be secured hereunder, only the assets of such Subsidiary secure such Indebtedness and (iii) the aggregate principal amount of all such Indebtedness at any time outstanding does not exceed the then applicable market interest rate$50,000,000;
(c) intercompany Indebtedness among the Borrower and its Subsidiaries;
(dn) obligations (contingent or otherwise) of any Loan Party or Subsidiary existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, fluctuations in interest rates or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, foreign exchange rates and not for speculative purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(eo) purchase money unsecured Indebtedness in an unlimited amount, so long as (i) no Event of Default exists immediately prior to and no Default would exist immediately after giving effect to such Indebtedness; (ii) the Loan Parties are in Pro Forma Compliance, immediately prior to and immediately after giving effect to such Indebtedness, subject with a Consolidated Leverage Ratio of not greater than 4.50:1.00 (with any committed amounts then being incurred or established assumed to be fully drawn, but without netting the limitations proceeds from any such Indebtedness); and (iii) such Indebtedness shall (A) not mature earlier than the latest Maturity Date at the time of incurrence of such Indebtedness, (B) have a Weighted Average Life to Maturity not shorter than the then-remaining Weighted Average Life to Maturity of the Facilities, (C) not be incurred or guaranteed at any time by a Person that is not a Guarantor and (E) with respect to financial covenant provisions, have terms no more restrictive to Holdings and its Subsidiaries than those set forth in Section 8.01(i)this Agreement;
(f) Indebtedness existing in or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z);
(gp) other unsecured Indebtedness as long as after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject an aggregate principal amount not to the limitations set forth in Section 8.01exceed $20,000,000 at any time outstanding; and
(hq) Guarantees Indebtedness in connection with respect to Indebtedness permitted under this Section 8.03treasury or cash management services, including treasury, depository, overdraft, credit or debit card, purchasing cards, electronic funds transfer, cash pooling arrangements, netting services and other cash management arrangements of the Borrower or any Subsidiary, in each case, incurred in the ordinary course of business.
Appears in 2 contracts
Samples: Credit Agreement (Digital Turbine, Inc.), Credit Agreement (Digital Turbine, Inc.)
Indebtedness. CreateHoldings shall not, and shall not permit any Subsidiary to create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents, including any Guaranty of the Obligations issued by any Guarantor;
(b) Indebtedness set forth outstanding and listed on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate5.1;
(c) intercompany (i) unsecured Indebtedness among of the Borrower and its SubsidiariesSubsidiaries and (ii) Permitted Convertible Indebtedness of Holdings; provided that the aggregate principal amount of all such Indebtedness incurred pursuant to this clause (c) shall not exceed $250,000,000 at any one time outstanding;
(d) obligations [Intentionally Deleted];
(contingent or otherwisee) existing or arising under any [Intentionally Deleted];
(f) Indebtedness in respect of Swap Contract, Contracts; provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) purchase money Indebtedness, subject to the limitations set forth in Section 8.01(i);
(f) Indebtedness existing in or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z)speculation;
(g) Indebtedness incurred to finance the acquisition, construction or improvement of any assets, including Capital Lease Obligations and including any such Indebtedness incurred for such purpose within 270 days after such acquisition or completion of construction or improvement, and any Indebtedness assumed 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 the aggregate principal amount of Indebtedness permitted by this clause (g) shall not exceed $25,000,000 at any one time outstanding;
(i) Indebtedness of a Loan Party (other than Holdings) to another Loan Party and (ii) Indebtedness of any Subsidiary of the Borrower to any other Subsidiary or the Borrower, provided that any such Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or another Loan Party shall only be permitted to the extent constituting an Investment permitted under Section 5.5;
(i) Guarantees by Holdings or its Subsidiaries of Indebtedness otherwise permitted under this Section 5.1;
(j) Indebtedness arising from the netting services, overdraft protections or the honouring by a bank or other financial institution of a cheque, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services in the ordinary course of business;
(k) Indebtedness of a Subsidiary, or Indebtedness attaching to an asset of a Person that is, acquired after the date of this Agreement or a corporation merged into or consolidated with the Borrower or any of its Subsidiaries after the Agreement and Indebtedness assumed in connection with the acquisition of assets, which Indebtedness in each case exists at the time of such acquisition, merger or consolidation and is not created in contemplation of such event and where such acquisition, merger or consolidation is permitted by this Agreement, provided that the aggregate amount of all such Indebtedness does not at any time exceed an amount at any time outstanding in excess of $10,000,000;
(l) Indebtedness incurred or arising in connection with the matters described in paragraphs (f), (h) and (w) of the definition of “Permitted Liens”;
(m) Indebtedness in respect of the Senior Secured Note Documents and/or other indebtedness that has the same ranking under, and is subject to, the ABL Intercreditor Agreement in an aggregate principal amount not to exceed US$275,000,000;
(n) Indebtedness in respect of the First Lien Note Documents and/or Subscription Receipt Documents in an aggregate principal amount not to exceed the sum of (i) US$350,000,000 (or the Equivalent Amount in Canadian Dollars), and (ii) $110,000,000;
(o) Indebtedness incurred by Holdings or any of its Subsidiaries arising from agreements providing for indemnification, holdbacks, purchase price adjustments (based on changes in working capital or similar arrangements) and earn-outs in connection with a Permitted Acquisition, or from non- compete agreements, deferred compensation, consulting, incentive or similar obligations or from guaranties or letters of credit, surety bonds or performance bonds securing the performance of Holdings or any such Subsidiary pursuant to such agreements, in connection with permitted acquisitions (including Permitted Acquisitions) or permitted dispositions of any business, assets or Subsidiary of Holdings or any of its Subsidiaries;
(p) (i) tenant improvement loans and allowances and (ii) guaranties incurred in the ordinary course of business of the obligations of suppliers, customers, franchisees, lessees, landlords and licensees of Holdings and its Subsidiaries;
(q) accretion or amortization of original issue discount and accretion of interest paid in kind, in each case in respect of Indebtedness otherwise permitted by this Section 5.1;
(r) Indebtedness of Holdings or any of its Subsidiaries consisting of obligations to insurance companies to pay insurance premiums (including financed premiums) arising in the ordinary course of business and not in connection with the borrowing of money or Swap Contracts;
(s) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, customs, appeal or similar obligations incurred in the ordinary course of business or any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities (including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims), in each case in the ordinary course of business;
(t) Indebtedness issued or incurred (including by means of the extension or renewal of existing Indebtedness) to refinance, refund, extend, defease, discharge, renew or replace Indebtedness incurred pursuant to Sections 5.1(c), (g), (k), (m), (n) or (v) (“Refinanced Indebtedness”); provided that (i) the principal amount of such refinancing, refunding, extending, defeasing, discharging, renewing or replacing Indebtedness is not greater than the principal amount of such Refinanced Indebtedness plus the amount of any premiums make-whole amounts or penalties and accrued and unpaid interest paid thereon and fees (including any closing fees and original issue discount) and expenses, in each case associated with such refinancing, refunding, extension, defeasance, discharge, renewal or replacement, (ii) such refinancing, refunding, extending, defeasing, discharging, renewing or replacing Indebtedness has a final maturity that is no sooner than the Revolving Credit Maturity Date, and (iii) if the Refinanced Indebtedness was subordinated in right of payment to the Obligations, then the terms of the refinancing refunding, extending, defeasing, discharging, renewing or replacing Indebtedness must include subordination terms and conditions that are at least as long favorable to the Administrative Agent and the Lenders as after giving effect thereto those that were applicable to the Refinanced Indebtedness (any such refinancing, refunding, extending, defeasing, discharging, renewing or replacing Indebtedness, a “Permitted Refinancing”);
(u) Indebtedness consisting of promissory notes issued by Holdings or any Subsidiary to current or former officers, managers, consultants, directors and employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) to finance the purchase or redemption of capital stock or securities convertible into capital stock of Holdings or any Parent;
(v) other Indebtedness of the Borrower is in compliance with and its Subsidiaries; provided that the financial covenant in Section 8.11 on a Pro Forma Basis, subject principal amount of all such Indebtedness shall not exceed $25,000,000 at any one time outstanding;
(w) other unsecured Indebtedness of the Borrower and its Subsidiaries; provided that the principal amount of all such Indebtedness incurred pursuant to the limitations set forth in Section 8.01this clause (w) shall not exceed $50,000,000; and
(hx) Guarantees Indebtedness of the Borrower and its Subsidiaries incurred in connection with respect any sale and leaseback transaction, in an aggregate principal amount not to Indebtedness permitted under this Section 8.03exceed $30 million at any time outstanding.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Postmedia Network Canada Corp.), Revolving Credit Agreement (Postmedia Network Canada Corp.)
Indebtedness. CreateThe Company shall not, and shall not permit any of its Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of the Company incurred under the Loan DocumentsFinancing Documents and in respect of the Obligations and the Guaranty of such Indebtedness by any Subsidiary of the Company;
(b) Indebtedness set forth on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) Capital Lease Obligations of the amount of such Indebtedness is not increased at the time of such refinancing, renewal Company or extension except any Subsidiary permitted by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rateSection 6.15;
(c) intercompany Indebtedness among of the Borrower and its Subsidiaries;Company under, or constituting net exposure under, Interest Hedging Agreements entered into in accordance with Section 5.13 or otherwise permitted by the Administrative Agent; 107
(d) obligations (contingent Indebtedness of the Company or otherwise) existing or arising any Subsidiary under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting partyPermitted Sale Leaseback;
(e) purchase money Indebtednessunsecured Indebtedness of the Company or any Subsidiary owing to any Sponsor or to any Affiliate, subject the principal of which is payable only after the repayment of the Obligations, which is expressly subordinated to the limitations set forth Obligations and which contains terms (including terms with respect to subordination) that are satisfactory to the Administrative Agent (which terms shall (i) include that, upon any foreclosure with respect to the Capital Stock of the Company, such Indebtedness shall only be payable from the excess proceeds of such foreclosure after application of such proceeds to the Obligations, and (ii) provide for no cash interest payments, except for cash interest payments to the extent and only to the extent funds are actually made available to the Company in accordance with clause "ninth" of Section 8.01(i8.12(b) and only if no Default, Event of Default or Designated Event shall have occurred and be continuing);
(f) any other unsecured Indebtedness existing in of the Company or relating any Subsidiary owing to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject any other Person which is expressly subordinated to the limitations set forth Obligations and which contains terms (including with respect to subordination) that are satisfactory to the Administrative Agent; PROVIDED, HOWEVER, and only to the extent, that the proceeds of such Indebtedness are utilized to pay Project Costs in Section 8.01(z)excess of those provided for in the Project Budget;
(g) Indebtedness of any Subsidiary of the Company to the Company;
(h) other Indebtedness as long as of the Company and any Subsidiary in an aggregate principal amount not to exceed $1,000,000 at any one time;
(i) any Indebtedness under Revolving Credit Loans entered into after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01Closing Date; and
(hj) Guarantees any limited-recourse Indebtedness in connection with respect the procurement of letters of credit to Indebtedness permitted under this Section 8.03support the payment obligations of certain Capacity Purchasers, PROVIDED that recourse is limited to an assignment of the Company's right to demand and receive payment from the applicable Capacity Purchaser whose payment obligations are supported by such letter of credit.
Appears in 2 contracts
Samples: Credit Agreement (Flag Telecom Holdings LTD), Credit Agreement (Flag Telecom Holdings LTD)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness set forth on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or existing on the Lenders than Closing Date and set forth in Schedule 7.03 (and renewals, refinancings, and extensions thereof which do not increase the principal amount thereof and are otherwise on terms of any agreement or instrument governing and conditions satisfactory to the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rateAdministrative Agent in its sole discretion);
(c) intercompany purchase money Indebtedness among (including obligations in respect of Capital Leases but excluding Synthetic Leases) hereafter incurred by the Borrower Loan Parties or any of their Subsidiaries to finance the purchase of fixed assets, provided that (i) such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed, (ii) no such Indebtedness shall be refinanced for a principal amount in excess of the principal balance outstanding thereon at the time of such refinancing and its Subsidiaries(iii) the total amount of all such Indebtedness at any time outstanding shall not exceed $500,000;
(d) obligations (contingent or otherwise) of any Loan Party or any Subsidiary existing or arising under any Swap Contract, Hedge Agreement (including any Secured Hedge Agreement); provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract Hedge Agreement does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) purchase money intercompany Indebtedness permitted under Section 7.02 (h); provided that in the case of the intercompany Indebtedness permitted pursuant to Section 7.02(h)(i) , such intercompany Indebtedness is evidenced by a demand note (which may cover all such intercompany Indebtedness, subject ) in form and substance satisfactory to the limitations set forth Administrative Agent and pledged and delivered to the Administrative Agent pursuant to the Security Agreement as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations in Section 8.01(i)a manner satisfactory to the Administrative Agent;
(f) Subordinated Indebtedness existing in or relating an amount not to real estate acquired exceed $1,000,000 (excluding the New Seller Notes permitted in subsection (h) below) at any time outstanding; provided that such Subordinated Indebtedness (i) has a maturity date that is not earlier than the six (6) month anniversary of the Term Loan Maturity Date and (ii) by a Loan Party or a Subsidiary for transmissionits terms, distribution or right-of-way purposes or in connection with its usual operations, subject does not require amortization payments prior to the limitations set forth in Section 8.01(z)maturity thereof;
(g) other Indebtedness as long as after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01; and
(h) Guarantees with respect to Indebtedness permitted under this Section 8.037.03 ;
(h) Indebtedness under the New Seller Notes, provided, that, at the time of the issuance of such New Seller Notes, and immediately after giving effect thereto, (i) no Default or Event of Default is outstanding or would occur as a result of the issuance thereof and (ii) such New Seller Notes are subordinate to the Obligations, pursuant to terms and conditions satisfactory to Administrative Agent. Notwithstanding anything to the contrary set forth in this subsection (h), Borrowers may issue New Seller Notes in connection with any Earnout Payment so long as such New Seller Notes are Qualified Seller Notes;
(i) Indebtedness of any Person that becomes a Subsidiary after the Closing Date (renewals, refinancings, and extensions thereof which do not increase the principal amount thereof), provided that (i) 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 (ii) the aggregate principal amount of Indebtedness permitted by this subsection shall not exceed $250,000 at any time outstanding; and
(j) other unsecured Indebtedness (not otherwise covered by (a) through (i) above) in an aggregate principal amount not exceeding $250,000 at any time outstanding.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Allion Healthcare Inc), Credit and Guaranty Agreement (Allion Healthcare Inc)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents, including Incremental Term Loans and Incremental Revolving Loans;
(b) Indebtedness outstanding on the Funding Date and, to the extent constituting an aggregate principal amount greater than $500,000 as set forth on Schedule 8.03 6.03, and any Permitted Refinancing Indebtedness in respect thereof; provided that, any such Indebtedness (and renewals, refinancings and extensions including any Permitted Refinancing Indebtedness in respect thereof); provided , to the extent owed by a Loan Party to a Subsidiary that is not a Loan Party, shall be unsecured and subordinated to the payment of the Obligations in a manner reasonably satisfactory to the Administrative Agent;
(i) Guarantees by the amount Borrower or any Guarantor in respect of such Indebtedness is not increased at otherwise permitted hereunder of the time of such refinancing, renewal Borrower or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and Guarantor; (ii) Guarantees by any Restricted Subsidiary that is not a Loan Party in respect of Indebtedness otherwise permitted hereunder of the terms relating to principal amountParent Guarantor, amortization, maturity, collateral the Borrower or any Restricted Subsidiary; and (if anyiii) and subordination (if any), and other material terms taken as a whole, Guarantees by the Borrower or any Guarantor in respect of any such refinancing, renewal or extension Indebtedness otherwise permitted hereunder of Restricted Subsidiaries that are no less favorable in any material respect not Loan Parties to the Loan Parties and their Subsidiaries extent such Guarantee constitutes an Investment permitted by Sections 6.02(c)(i) or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;
(c) intercompany Indebtedness among the Borrower and its Subsidiaries6.02(o);
(d) obligations (contingent or otherwise) of the Parent Guarantor, the Borrower or any Restricted Subsidiary existing or hereafter arising under any Swap Contract; provided that, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” speculation; and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting partyparty (other than pursuant to customary netting or set-off provisions);
(e1) Indebtedness of the Parent Guarantor, the Borrower or any Restricted Subsidiary in respect of Capital Leases and purchase money Indebtednessobligations for fixed or capital assets, subject to which may be secured by Liens under and within the applicable limitations set forth in Section 8.01(i6.01(i); provided that, the aggregate amount of all such Indebtedness at any one time outstanding pursuant to this clause (e) (when aggregated with the aggregate principal amount of Permitted Refinancing Indebtedness (other than any Refinancing Excess Amounts) Incurred pursuant to subclause (2) below in respect of such Indebtedness then outstanding) shall not exceed the greater of (x) $8,000,000 and (y) 20% of Consolidated EBITDA of the Parent Guarantor, the Borrower and the Restricted Subsidiaries based on the most recent financial statements delivered under Section 5.01(a) or (b) or, prior to the time any such statements are first required to be so delivered pursuant to Section 5.01(a) or (b), the financial statements delivered pursuant to (1) prior to the Funding Date, Section 4.01(d)(i) and (y) on and after the Funding Date, Section 4.01(d)(i) and (ii) and (2) Permitted Refinancing Indebtedness in respect of any Indebtedness incurred under the foregoing;
(f) Indebtedness existing in of the Parent Guarantor, the Borrower or relating any Restricted Subsidiary owing to real estate acquired the Parent Guarantor, the Borrower or any Restricted Subsidiary to the extent constituting an Investment permitted by Section 6.02(c); provided that, such Indebtedness, to the extent owed by a Loan Party or to a Restricted Subsidiary for transmissionthat is not a Loan Party, distribution or right-of-way purposes or in connection with its usual operations, subject shall be subordinated to the limitations set forth payment of the Obligations in Section 8.01(z)a manner reasonably satisfactory to the Administrative Agent;
(g) Indebtedness incurred by a Restricted Subsidiary that is not organized under the laws of any political subdivision of the United States, which, when aggregated with the principal amount of all other Indebtedness as long as after giving effect thereto incurred pursuant to this clause (g) and then outstanding, does not exceed the greater of (x) $7,000,000 and (y) 14% of Consolidated EBITDA of the Parent Guarantor, the Borrower is in compliance with and the Restricted Subsidiaries based on the most recent financial statements delivered under Section 5.01(a) or (b) or, prior to the time any such statements are first required to be so delivered pursuant to 5.01(a) or (b), the financial covenant in Section 8.11 on a Pro Forma Basis, subject statements delivered pursuant to (1) prior to the limitations set forth in Funding Date, Section 8.014.01(d)(i) and (2) on and after the Funding Date, Section 4.01(d)(i) and (ii);
(1) unsecured Indebtedness issued by the Parent Guarantor, the Borrower and the Restricted Subsidiaries, including Disqualified Equity Interests; and
provided that, (i) the pro forma Total Leverage Ratio would be less than 4.00:1.00, (ii) the stated maturity of such Indebtedness is not less than ninety one (91) days following the Latest Maturity Date at the time of incurrence of such unsecured Indebtedness and the Weighted Average Life to Maturity of such Indebtedness is not shorter than the remaining Weighted Average Life to Maturity of any Term Loans, and (iii) at the time of incurrence of such Indebtedness, there shall be no Event of Default; provided that, the aggregate amount of all Indebtedness incurred by Restricted Subsidiaries that are not Loan Parties at any one time outstanding pursuant to this clause (h) Guarantees (when aggregated with the aggregate principal amount of Permitted Refinancing Indebtedness (other than any Refinancing Excess Amounts) Incurred pursuant to subclause (2) below in respect of such Indebtedness then outstanding) shall not exceed the greater of (i) $15,000,000 and (ii) 37.5% of Consolidated EBITDA of the Parent Guarantor, the Borrower and the Restricted Subsidiaries based on the most recent financial statements delivered under Section 5.01(a) or (b) or, prior to the time any such statements are first required to be so delivered pursuant to Section 5.01(a) or (b), the financial statements delivered pursuant to (1) prior to the Funding Date, Section 4.01(d)(i) and (2) on and after the Funding Date, Section 4.01(d)(i) and (ii) and (2) Permitted Refinancing Indebtedness in respect of any Indebtedness incurred under the foregoing;
(i) other Indebtedness of the Parent Guarantor, the Borrower and the Restricted Subsidiaries in an aggregate principal amount at any one time outstanding not to exceed the greater of (x) $10,000,000 and (y) 25% of Consolidated EBITDA of the Parent Guarantor, the Borrower and the Restricted Subsidiaries based on the most recent financial statements delivered under Section 5.01(a) or (b) or, prior to the time any such statements are first required to be so delivered pursuant to Section 5.01(a) or (b), the financial statements delivered pursuant to (1) prior to the Funding Date, Section 4.01(d)(i) and (2) on and after the Funding Date, Section 4.01(d)(i) and (ii);
(j) [reserved];
(k) Indebtedness of the Parent Guarantor, the Borrower or any Restricted Subsidiary consisting of obligations to pay insurance premiums or take-or-pay obligations contained in supply arrangements incurred in the ordinary course of business;
(l) Indebtedness consisting of obligations of the Parent Guarantor, the Borrower or the Restricted Subsidiaries under deferred consideration or other similar arrangements (including earn-outs, indemnifications, incentive non-competes and other contingent obligations and agreements consisting of the adjustment of purchase price or similar adjustments) incurred by such Person in connection with any Permitted Acquisition or Disposition permitted by Section 6.05 or any other Investment permitted under Section 6.02; provided that, the aggregate principal amount of all such Indebtedness of Restricted Subsidiaries that are not Loan Parties shall not exceed $5,000,000 in the aggregate at any time outstanding;
(m) Indebtedness incurred by the Parent Guarantor, the Borrower or any Restricted Subsidiary in respect of bank guarantees, warehouse receipts or similar instruments (other than letters of credit) issued or created in the ordinary course of business or consistent with past practice, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance, or other Indebtedness with respect to reimbursement type obligations (other than obligations in respect of letters of credit) regarding workers compensation claims;
(n) obligations in respect of performance, bid, appeal and surety bonds and performance and completion guarantees and similar obligations provided by the Parent Guarantor, the Borrower or any Restricted Subsidiary;
(o) Indebtedness permitted arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that, such Indebtedness is extinguished within five (5) Business Days of incurrence;
(p) Indebtedness in respect of overdraft facilities, automatic clearinghouse arrangements, employee credit card programs, corporate cards and purchasing cards, and other business cash management arrangements in the ordinary course of business, including Indebtedness arising under or in connection with any Cash Management Agreement with a Cash Management Bank, and incentive, supplier finance or similar programs;
(q) Indebtedness incurred under commercial letters of credit issued for the account of the Parent Guarantor, the Borrower or any Restricted Subsidiary in the ordinary course of business (and not for the purpose of, directly or indirectly, incurring Indebtedness or providing credit support or a similar arrangement in respect of Indebtedness) or Indebtedness of the Parent Guarantor, the Borrower or any Restricted Subsidiary under letters of credit and bank guarantees backstopped by Letters of Credit issued under this Section 8.03.Agreement;
(r) Indebtedness representing deferred compensation to employees of the Parent Guarantor, the Borrower or any Restricted Subsidiary incurred in the ordinary course of business;
Appears in 2 contracts
Samples: Credit Agreement (Waldencast PLC), Credit Agreement (Waldencast Acquisition Corp.)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness set Set forth on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that on: (i) Schedule 6.5(c)(i) hereto is a list and description of (A) all Indebtedness of the amount Credit Parties and their respective Subsidiaries (other than the Senior Notes and the Loans) in excess of such $5,000,000 that will be outstanding immediately after the Effective Date and (B) all Indebtedness is not increased at of the time Credit Parties and their respective Subsidiaries in excess of such refinancing$5,000,000 that will be repaid, renewal defeased, transferred or extension except by an amount equal otherwise terminated on or prior to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and the Effective Date; (ii) Schedule 6.5(c)(ii) hereto is a list and description of the terms relating Existing Non-U.S. Facilities and the obligations of any Subsidiary of Crown Holdings that has any Guarantee Obligations with respect to, is an obligor under or provides credit support in respect of such Existing Non-U.S. Facilities as of the Effective Date; and (iii) Schedule 6.5(c)(iii) hereto is a list and description of the Existing Factoring Facilities and the obligations of any Subsidiary of Crown Holdings that has any Guarantee Obligations with respect to, is an obligor under or provides credit support in respect of such Existing Factoring Facilities as of the Effective Date (collectively the “Indebtedness to Remain Outstanding”), in each case showing the outstanding aggregate principal amount, amortization, maturity, collateral amount thereof (if anyand the aggregate amount of any undrawn commitments with respect thereto) and subordination the name of the respective obligor and any other entity which directly or indirectly guaranteed such debt. No Indebtedness to Remain Outstanding (if any)other than the Senior Notes) has been incurred in connection with, and other material terms taken as a wholeor in contemplation of, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries Transactions or the Lenders than other transactions contemplated hereby. Crown Holdings has delivered or caused to be delivered to Administrative Agent a true and complete copy of the terms form of any each material instrument evidencing Indebtedness for money borrowed listed on Schedule 6.5(c)(i) and of each material agreement or instrument governing the pursuant to which such Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;
(c) intercompany Indebtedness among the Borrower and its Subsidiaries;
(d) obligations (contingent or otherwise) existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) purchase money Indebtedness, subject to the limitations set forth in Section 8.01(i);
(f) Indebtedness existing in or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z);
(g) other Indebtedness as long as after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01; and
(h) Guarantees with respect to Indebtedness permitted under this Section 8.03borrowed was issued.
Appears in 2 contracts
Samples: Credit Agreement (Crown Holdings Inc), Credit Agreement (Crown Holdings Inc)
Indebtedness. CreateIncur, incurcreate, assume or suffer to exist or otherwise become liable in respect of any Indebtedness, exceptother than:
(a) Indebtedness under incurred prior to the Loan Documentsdate hereof as described on Schedule II attached hereto;
(b) Indebtedness set forth to the Lenders under this Agreement, the Notes or any other Loan Document;
(c) Indebtedness for trade payables incurred in the ordinary course of business; provided such payables shall be paid or discharged when due;
(d) Indebtedness consisting of guaranties permitted pursuant to Section 7.03 hereof;
(e) Indebtedness secured by purchase money liens as permitted under Section 7.02(i) hereof and Indebtedness arising under Capital Leases; provided that the aggregate amount of such Indebtedness incurred shall not exceed $10,000,000 in any fiscal year or $15,000,000 at any time outstanding; and, further, provided no Default or Event of Default shall have occurred and be continuing or would occur after giving effect to the incurrence of such Indebtedness;
(f) Indebtedness with respect to Hedging Agreements entered into by the Company, provided that such Hedging Agreements shall be entered into in the ordinary course of its business and not for speculative purposes;
(g) Indebtedness for taxes, assessments or other governmental charges or levies not yet delinquent or which are being contested in good faith by appropriate proceedings; provided, however, that adequate reserves with respect thereto are maintained on Schedule 8.03 the books of the Company or any Subsidiary of the Company in accordance with Generally Accepted Accounting Principles;
(h) Indebtedness owing by (i) the Company to any Guarantor or (ii) any Guarantor to the Company or any other Guarantor, to the extent that such Indebtedness is not otherwise prohibited by the terms and renewalsconditions of this Agreement;
(i) Indebtedness of any Person that becomes a Subsidiary on or after the date hereof (including, refinancings and extensions thereofwithout limitation, as a result of any Permitted Acquisition); provided that such Indebtedness incurred pursuant to this Section 7.01(i) (A) shall not exceed (x) $10,000,000 in connection with any individual acquisition or (y) $30,000,000 in the aggregate at any time outstanding; and further provided that such Indebtedness (i) the amount of such Indebtedness is not increased exists at the time of such refinancingPerson becomes a Subsidiary, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) is not created in anticipation or contemplation of such Person becoming a Subsidiary, (iii) is not directly or indirectly recourse to the terms relating Company or any of the Guarantors or any of their respective assets, other than to principal amountthe Person that becomes a Subsidiary, amortization, maturity, collateral (if anyiv) and subordination (if any)is purchase money indebtedness or indebtedness secured only by mortgages on real property, and (v) is not unsecured indebtedness or indebtedness secured by assets of such Subsidiary other material terms taken than as a wholecontemplated by the preceding clause (iv); or (B) is Subordinated Indebtedness, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of provided that if any agreement or instrument governing the terms of such Subordinated Indebtedness being refinanced, renewed has any covenant (including a financial covenant) which is more restrictive that the corresponding covenant set forth in this Agreement or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed have a corresponding covenant in this Agreement, then the then applicable market interest rateAdministrative Agent shall, at the request of the Required Lenders, have the right to amend this Agreement to incorporate such covenants from such Subordinated Indebtedness;
(cj) intercompany Indebtedness among in respect of bid, performance or surety bonds issued for the Borrower and its Subsidiariesaccount of the Company or any of the Guarantors in the ordinary course of business, including guarantees or obligations of the Company or any of the Guarantors with respect to letters of credit supporting such bid, performance or surety obligations (in each case other than for an obligation for money borrowed) provided that any such Letters of Credit that are issued on or after the Closing Date are issued by the Issuing Lender hereunder unless the beneficiary of such Letter of Credit will not accept a letter of credit issued by the Issuing Lender;
(k) Contingent Obligations of the Company or any of the Guarantors in respect of Indebtedness otherwise permitted under this Section 7.01 (other than this Section 7.01(k));
(l) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of incurrence;
(m) (i) Indebtedness of any Non-Domestic Subsidiary owing to any party other than the Company and/or any Guarantor not exceeding $10,000,000 in the aggregate at any time outstanding; provided that such Indebtedness is not directly or indirectly recourse to the Company or any of the Guarantors or of their respective assets, other than to such Non-Domestic Subsidiary and (ii) Indebtedness of any Non-Domestic Subsidiary owing to the Company and/or any Guarantor not exceeding $30,000,000 in the aggregate at any time outstanding provided that no more than $10,000,000 of such Indebtedness may be incurred in any calendar year;
(n) Indebtedness which represents a refinancing or renewal of any of the Indebtedness described in clauses (a), (b), (d) and (e); provided that (A) any such refinancing Indebtedness is in an aggregate principal amount (or aggregate amount, as applicable) not greater than the aggregate principal amount (or aggregate amount, as applicable) of the Indebtedness being renewed or refinanced, plus the amount of any reasonable premiums required to be paid thereon and reasonable fees and expenses associated therewith, (B) in the case of Indebtedness described in clauses (a) and (e), such refinancing Indebtedness has a later or equal final maturity and longer or equal weighted average life to maturity than the Indebtedness being renewed or refinanced, (C) the covenants, events of default, subordination (including lien subordination) and other terms, conditions and provisions thereof (including any guarantees thereof or security documents in respect thereof) shall be, in the aggregate, no less favorable to the Company or any Guarantors, as applicable, than those contained in the Indebtedness being renewed or refinanced and (D) no Event of Default has occurred and is continuing or would result therefrom;
(o) Indebtedness incurred in the ordinary course of business solely to support any Company or any Guarantor’s insurance or self-insurance obligations (contingent or otherwiseincluding to secure workmen’s compensation and other similar insurance coverage; or
(p) existing or arising under Additional Indebtedness of the Company and the Guarantors in an aggregate amount at any Swap Contracttime outstanding not to exceed $10,000,000, provided that (i) such obligations are (no Default or were) entered into by such Person in the ordinary course Event of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, Default has occurred and not for purposes of speculation or taking a “market view;” is then continuing and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) purchase money Indebtedness, subject to the limitations set forth in Section 8.01(i);
(f) Indebtedness existing in or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z);
(g) other Indebtedness as long as after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01; and
(h) Guarantees with respect to Indebtedness permitted under this Section 8.03shall be unsecured.
Appears in 2 contracts
Samples: Credit Agreement (Comtech Telecommunications Corp /De/), Credit Agreement (Comtech Telecommunications Corp /De/)
Indebtedness. CreateCHAR1\1054915v3 The Sponsor will not create, incur, assume or suffer to exist exist, or permit any Subsidiary to create, incur, assume or suffer to exist, any Indebtedness, except:
(a) Indebtedness under the Loan Operative Documents;
(b) Indebtedness of the Sponsor and the Guarantors under the Revolving Facility;
(c) Indebtedness of the Sponsor and the Guarantors under the Senior Note Purchase Agreement in an aggregate principal amount not to exceed $150,000,000;
(d) Indebtedness of the Sponsor and its Subsidiaries existing on the Fourth Amendment Effective Date and set forth on in Schedule 8.03 6.27;
(e) purchase money Indebtedness (including Capital Lease Obligations or Synthetic Lease Obligations) incurred by the Sponsor or any of its Subsidiaries to finance the purchase of fixed assets, and renewals, refinancings and extensions thereof); provided provided, that (i) the aggregate principal amount of all such Indebtedness is at any one time outstanding shall not increased exceed $20,000,000, (ii) such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed; and (iii) no such Indebtedness shall be refinanced for a principal amount in excess of the principal balance outstanding thereon at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, ;
(f) secured Indebtedness of the Credit Parties assumed in connection with a Permitted Acquisition so long as such refinancing and by an amount equal to any existing commitments unutilized thereunder Indebtedness (i) was not incurred in anticipation of or in connection with the respective Permitted Acquisition and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed $50,000,000 in the then applicable market interest rateaggregate at any time outstanding;
(c) intercompany Indebtedness among the Borrower and its Subsidiaries;
(dg) obligations (contingent or otherwise) of the Sponsor or any Subsidiary existing or arising under any Swap ContractHedging Agreement, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract Hedging Agreement does not contain any provision exonerating the non-non defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) purchase money Indebtedness, subject to the limitations set forth in Section 8.01(i);
(fh) Indebtedness existing in or relating to real estate acquired the form of Guaranties of Indebtedness permitted by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z6.17(c);
(g) other Indebtedness as long as after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01; and
(hi) Guarantees with respect other unsecured Indebtedness of the Sponsor and its Subsidiaries not to Indebtedness permitted under this Section 8.03.exceed $10,000,000 in the aggregate at any one time outstanding;
Appears in 2 contracts
Samples: Loan Facility Agreement and Guaranty (Ruby Tuesday Inc), Loan Facility Agreement and Guaranty (Ruby Tuesday Inc)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan DocumentsSecured Obligations;
(b) Indebtedness set forth outstanding on the date hereof and listed on Schedule 8.03 (7.03 and renewalsany refinancings, refinancings and refundings, renewals or extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest ratethereunder;
(c) intercompany Guarantees by the Borrowers or any Subsidiary in respect of Indebtedness among otherwise permitted hereunder, in each case, to the Borrower extent permitted as an Investment pursuant to Section 7.02; provided that, (i) if the Indebtedness that is guaranteed is subordinated to the Secured Obligations, then such guaranty shall also be subordinated to the Secured Obligations, and its Subsidiaries(ii) no guarantee by a Subsidiary of any Indebtedness shall be permitted unless such Subsidiary shall have also provided a guarantee of the Secured Obligations on terms set forth herein;
(d) obligations (contingent or otherwise) of the Borrower or any Subsidiary existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) Attributable Indebtedness and Indebtedness in connection with purchase money Indebtedness, subject to obligations for fixed or capital assets within the limitations set forth in Section 8.01(i7.01(i); provided, however, that the aggregate amount of all such Attributable Indebtedness and purchase money obligations at any one time outstanding shall not exceed $25,000,000;
(f) so long as no Default has occurred and is continuing or would result therefrom, unsecured Indebtedness existing in or relating an aggregate principal amount not to real estate acquired by exceed $30,000,000 at any time outstanding;
(i) Indebtedness of any Loan Party owing to any other Loan Party, (ii) Indebtedness of any Loan Party owing to any Subsidiary that is not a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or so long as such Indebtedness is unsecured and subordinated in connection with its usual operations, subject right of payment to the limitations set forth payment in full of the Secured Obligations pursuant to terms satisfactory to the Administrative Agent, (iii) Indebtedness of any wholly-owned Subsidiary that is not a Loan Party owing to a Loan Party, so long as the aggregate amount of all such Indebtedness, together with any Investments incurred under Section 8.01(z7.02(c)(iii), does not exceed $50,000,000, and (iv) Indebtedness of any Subsidiary that is not a Loan Party owing to any other Subsidiary that is not a Loan Party;
(gh) other Indebtedness as in an aggregate principal amount not to exceed $100,000,000 at any time outstanding in respect of surety bonds, letters of credit, and similar instruments issued in the ordinary course of business; and
(i) Indebtedness at any time outstanding in respect of letters of credit issued in the ordinary course of business so long as before and after giving effect thereto to such Indebtedness, the Borrower is shall be in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01; and
(h7.11(b) Guarantees with respect hereof on a pro forma basis after giving effect to Indebtedness permitted under this Section 8.03such Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement (PERDOCEO EDUCATION Corp), Credit Agreement (PERDOCEO EDUCATION Corp)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness set forth on Schedule 8.03 (outstanding at the Effective Time and renewalslisted in the Disclosure Certificate and any refinancings, refinancings and refundings, renewals or extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest ratethereunder;
(c) intercompany Guarantees of the Company or any Subsidiary in respect of Indebtedness among otherwise permitted hereunder of the Borrower and its SubsidiariesCompany or any wholly-owned Subsidiary;
(d) obligations (contingent or otherwise) of the Company or any Subsidiary existing or arising under any Swap Contract, ; provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, Person and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) Indebtedness in respect of capital leases, Synthetic Lease Obligations and purchase money Indebtedness, subject to obligations for fixed or capital assets within the limitations set forth in Section 8.01(i7.1(j);; provided that the aggregate amount of all such Indebtedness at any one time outstanding shall not exceed a Material Financial Amount; and
(f) unsecured Indebtedness existing in or relating an aggregate principal amount not to real estate acquired by exceed at any time outstanding 20% of Consolidated Net Worth as of the end of the preceding fiscal year; provided that the aggregate amount of all such Indebtedness which is not Permitted Long-Term Indebtedness shall not at any time exceed a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z);
(g) other Indebtedness as long as after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01; and
(h) Guarantees with respect to Indebtedness permitted under this Section 8.03Material Financial Amount.
Appears in 2 contracts
Samples: Credit Agreement (Abm Industries Inc /De/), Credit Agreement (Abm Industries Inc /De/)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness set forth outstanding on Schedule 8.03 the Closing Date (and renewals, refinancings and extensions thereofbut excluding Indebtedness under a Permitted Receivables Purchase Facility); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;
(c) intercompany Indebtedness among Guarantees of the Borrower and its Subsidiariesor any Subsidiary in respect of Indebtedness otherwise permitted hereunder of the Borrower or any wholly-owned Subsidiary;
(d) obligations (contingent or otherwise) of the Borrower or any Subsidiary existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” ”; and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) Indebtedness in respect of capital leases, Synthetic Lease Obligations and purchase money Indebtedness, subject to obligations for fixed or capital assets within the limitations set forth in Section 8.01(i7.01(i);
(f) Indebtedness existing in of the Borrower or relating to real estate acquired by a Loan Party or a any Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Investments permitted by Section 8.01(z7.02(c) or (j);
(g) other Indebtedness, including Indebtedness as arising in connection with any Permitted Receivables Purchase Facility, that either is (i) secured by Liens on assets of the Borrower or any of its Subsidiaries or (ii) the material terms of which are more restrictive than the terms of this Agreement, so long as after giving effect thereto the Borrower is aggregate principal amount of all such Indebtedness described in compliance with clauses (i) and (ii) above does not exceed the financial covenant in Section 8.11 on a Pro Forma Basis, subject to greater of $300,000,000 and 20% of Consolidated Net Worth at any time outstanding; provided that the limitations set forth in Section 8.01aggregate principal amount of all Permitted Receivables Purchase Facilities at any time outstanding may not exceed $250,000,000; and
(h) Guarantees with respect other unsecured Indebtedness of the Borrower or any of is Subsidiaries so long as (i) no Default has occurred and is continuing, or would result (on a pro forma basis) from the incurrence of such Indebtedness, and (ii) the material terms thereof are either (A) in the case of Indebtedness of the Borrower or one of its Domestic Subsidiaries, no more restrictive than the terms of this Agreement, or (B) in the case of Indebtedness of a Subsidiary of the Borrower that is not a Domestic Subsidiary, no more restrictive as applied to Indebtedness permitted under the Borrower and its Domestic Subsidiaries than the terms of this Section 8.03Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Precision Castparts Corp), Credit Agreement (Precision Castparts Corp)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) (i) Indebtedness under the Loan Documents;, (ii) Indebtedness incurred under the BofA Agreement, (iii) Indebtedness incurred under the Xxxxx Agreement, (iv) Indebtedness incurred under the KeyBank Agreement; and (v) Indebtedness incurred under the Capital One Agreement.
(b) intercompany Indebtedness set forth on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) among members of the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rateConsolidated Group;
(c) intercompany Indebtedness among the Borrower and its Subsidiaries;
(d) obligations (contingent or otherwise) of a Loan Party or any Subsidiary existing or arising under any Swap Contract, ; provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) purchase money Indebtedness, subject to the limitations set forth in Section 8.01(i);
(f) Indebtedness existing in or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z);
(gd) other Indebtedness as long as after giving effect thereto the incurrence of such Indebtedness will not cause, on a pro forma basis, a Default under the Loan Documents, including the financial covenants in Section 8.11; and
(e) Guaranties of the foregoing; provided that, a Subsidiary cannot guaranty borrowed money Indebtedness owed by the Parent Entity, the Borrower is in compliance with the financial covenant in Section 8.11 on or any other Loan Party unless such Subsidiary is, or simultaneously becomes, a Pro Forma Basis, subject to the limitations Subsidiary Guarantor as set forth in Section 8.01; and
(h) Guarantees with respect to Indebtedness permitted under this Section 8.037.13.
Appears in 2 contracts
Samples: Credit Agreement (Phillips Edison & Company, Inc.), Credit Agreement (Phillips Edison & Company, Inc.)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness set forth on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that Indebtedness: (i) outstanding on the amount of such date hereof and listed on Schedule 7.03 and any Refinancing Indebtedness is not increased at the time of such refinancing, renewal in respect thereof; or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) to be incurred after the terms relating to principal amount, amortization, maturity, collateral (if any) Closing Date and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable which has been previously disclosed in any material respect reasonable detail to the Loan Parties Administrative Agent and their Subsidiaries or the Lenders than in writing at least three (3) Business Days prior to the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rateClosing Date;
(c) intercompany Guarantees of (i) the Company or any Restricted Subsidiary in respect of Indebtedness among otherwise permitted hereunder of the Borrower Company or any Restricted Subsidiary (other than in respect of Indebtedness permitted under subsections (g), (h) and its Subsidiaries(j) of this Section); (ii) any Loan Party in respect of Indebtedness permitted under subsections (g) and (h) of this Section; and (iii) any Limited Subsidiary in respect to Indebtedness permitted under subsection (j) of this Section;
(d) obligations (contingent or otherwise) of the Company or any Subsidiary existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) unsecured intercompany Indebtedness (i) owed by the Company or any Wholly Owned Restricted Subsidiary to the Company, any other Loan Party or any other Wholly Owned Restricted Subsidiary that is not a Loan Party, (ii) owed by any Restricted Subsidiary (other than a Wholly Owned Restricted Subsidiary or a Loan Party) to the Company, any other Loan Party or a Wholly Owned Restricted Subsidiary that is not a Loan Party so long as the related Investment by the Company, other Loan Party or Wholly Owned Restricted Subsidiary that is not a Loan Party is permitted by Section 7.02(h) or (i), (iii) owed by a Restricted Subsidiary that is not a Wholly Owned Restricted Subsidiary to another Restricted Subsidiary that is not a Wholly Owned Restricted Subsidiary and (iv) owed by the Company or any Wholly Owned Restricted Subsidiary to a Restricted Subsidiary that is not a Wholly Owned Restricted Subsidiary and not a Loan Party so long as (A) the Investment by such Restricted Subsidiary is permitted by Section 7.02(h) or (i) and (B) if such Indebtedness is owing by a Loan Party, it is subordinated to the Obligations in a manner reasonably satisfactory to the Administrative Agent;
(f) (i) Indebtedness in respect of capital leases, Synthetic Lease Obligations and purchase money Indebtedness, subject to obligations for fixed or capital assets within the limitations set forth in Section 8.01(i7.01(i) and Refinancing Indebtedness in respect of such Indebtedness; (ii) other Indebtedness of a Person existing at the time such Person became a Subsidiary or assets were acquired from such Person in connection with an Investment permitted pursuant to Section 7.02 and Refinancing Indebtedness in respect of such Indebtedness so long as any such Indebtedness described in this clause (ii) or any Refinancing Indebtedness in respect thereof (A) was not incurred in connection with, or in contemplation of, such Person becoming a Subsidiary or the acquisition of such assets, and (B) neither the Company nor any Restricted Subsidiary thereof (other than such Person or any other Person that such Person merges with or that acquires the assets of such Person) shall have any liability or other obligation with respect to such Indebtedness; provided that the aggregate amount of such Indebtedness incurred at any time under this subsection (f);
, when combined with all other Indebtedness incurred previously pursuant to this subsection (f) (and after giving credit for any permanent repayments of any such Indebtedness existing so incurred), determined as of the date of such incurrence (and after giving pro forma effect to such proposed incurrence), shall not exceed 5% of the consolidated total assets of the Company and its Restricted Subsidiaries determined in accordance with GAAP as of the last day of the fiscal quarter or relating fiscal year immediately preceding such date of incurrence for which financial statements are required to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject be delivered to the limitations set forth in Administrative Agent and the Lenders pursuant to Section 8.01(z6.01 (it being acknowledged and agreed that no Default shall be deemed to have occurred if the aggregate amount of all such Indebtedness incurred under this subsection (f) shall at a later time exceed 5% of the consolidated total assets of the Company and its Restricted Subsidiaries so long as at the time of each such incurrence each such incurrence was permitted to be made under this subsection (f));
(g) other Indebtedness as long as consisting of Permitted Pari Passu Indebtedness;
(h) unsecured Indebtedness of the Loan Parties; provided that (i) at the time of incurrence thereof, no Default has occurred and is continuing or would result from the incurrence of such Indebtedness immediately following the incurrence of such Indebtedness; (ii) immediately before and immediately after giving pro forma effect thereto to the Borrower is incurrence of such Indebtedness the Company and its Restricted Subsidiaries shall be in compliance with each of the financial covenant covenants contained in Section 8.11 on a Pro Forma Basis, subject 7.12; (iii) such Indebtedness shall not be scheduled to mature prior to the limitations set forth Maturity Date and shall not have a weighted average life to maturity (as reasonably determined by the Administrative Agent in accordance with customary financial practice) that is shorter than the remaining term of the Commitments; and (iv) no Subsidiary of the Company other than a Loan Party shall be obligated, either primarily or as a guarantor or otherwise, with respect to such Indebtedness;
(i) Indebtedness (including Permitted Receivables Financings) of any Restricted Subsidiary that is a Foreign Subsidiary (other than a Foreign Subsidiary described in clause (c) of the definition of such term) in an aggregate principal amount at the time of incurrence that, when combined with all other Indebtedness incurred previously pursuant to this subsection (i) (and after giving credit for any permanent repayments of any such Indebtedness so incurred), determined as of the date of such incurrence (and after giving pro forma effect to such proposed incurrence), shall not exceed 6.5% of the consolidated total assets of the Company and its Foreign Subsidiaries that are Restricted Subsidiaries determined in accordance with GAAP as of the last day of the fiscal quarter or fiscal year immediately preceding such date of incurrence for which financial statements are required to be delivered to the Administrative Agent and the Lenders pursuant to Section 6.01 (it being acknowledged and agreed that no Default shall be deemed to have occurred if the aggregate amount of all such Indebtedness incurred under this subsection (i) shall at a later time exceed 6.5% of the consolidated total assets of the Company and its Foreign Subsidiaries that are Restricted Subsidiaries so long as at the time of each such incurrence each such incurrence was permitted to be made under this subsection (i));
(j) Indebtedness of any Limited Subsidiary; provided that (i) at the time of incurrence thereof, no Default has occurred and is continuing or would result the incurrence of such Indebtedness; (ii) immediately before and immediately after giving pro forma effect to such Indebtedness the Company and its Restricted Subsidiaries shall be in compliance with each of the financial covenants contained in Section 8.017.12; and (iii) neither the Company nor any Subsidiary of the Company, other than a Limited Subsidiary, shall be obligated, either primarily or as a guarantor or otherwise, with respect to such Indebtedness;
(k) unsecured Indebtedness in an aggregate principal amount not to exceed $150,000,000 at any time outstanding;
(l) additional Indebtedness in an aggregate principal amount not to exceed $100,000,000 at any time outstanding;
(m) Indebtedness under or in respect of Cash Management Agreements;
(n) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or other similar instrument drawn against insufficient funds in the ordinary course of business;
(o) Indebtedness under performance bonds, surety bonds, release, appeal and similar bonds, statutory obligations or with respect to workers’ compensation claims, in each case incurred in the ordinary course of business, and reimbursement obligations in respect of any of the foregoing (including in respect of letters of credit issued in support of any of the foregoing);
(p) 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 any Loan Party or its Subsidiaries to purchase or redeem Equity Interests of the Company permitted pursuant to Section 7.06(e);
(q) Indebtedness arising from agreements providing for indemnification or purchase price adjustments, in each case, incurred or assumed in connection with Investments permitted by or under Section 7.02(f)(ii), (g), (h) or (i) or the Disposition of any assets permitted by Section 7.04 or 7.05;
(r) Indebtedness (i) incurred to finance insurance premiums or (ii) resulting from take-or-pay obligations contained in supply agreements, in each case, in the ordinary course of business;
(s) Indebtedness in respect of Permitted Receivables Financings of the Company and/or its Domestic Subsidiaries so long as (i) the date of the initial incurrence of any such Indebtedness is a Permitted Receivables Financing Date, (ii) the aggregate outstanding amount of all Permitted Receivables Financings shall not exceed $300,000,000 at any time, and (iii) no such Indebtedness is in the form of a term loan facility; and
(ht) Guarantees Indebtedness in respect of any capital lease incurred in connection with respect to Indebtedness permitted under this Section 8.03a Tax Incentive Program.
Appears in 2 contracts
Samples: Credit Agreement (Mohawk Industries Inc), Credit Agreement (Mohawk Industries Inc)
Indebtedness. CreateThe U.S. Borrower will not, incurand will not permit any of its Subsidiaries to, assume incur or suffer to exist any Indebtedness, exceptassume:
(i) any Indebtedness if (a) either (I) immediately before giving effect to the incurrence or assumption of such Indebtedness under there exists a Default or Event of Default or (II) immediately after giving effect to the Loan Documents;
incurrence or assumption of such Indebtedness after giving effect to the application of the proceeds thereof, there exists a Default or Event of Default or (b) Indebtedness set forth based on Schedule 8.03 calculations made by the U.S. Borrower on a Pro Forma Basis after giving effect to such incurrence or assumption and as if such incurrence or assumption had occurred on the first day of the respective Calculation Period, a Default or Event of Default will exist in respect of, or would have existed during the Test Period last reported (and renewalsor required to be reported pursuant to Section 10.11(a) or Section 10.11(b), refinancings and extensions thereof)as the case may be) prior to the date of the respective incurrence or assumption in respect of, the financial covenants contained in Sections 9.01 through 9.03, inclusive; provided that the foregoing provisions of this Section 11.02(i) shall not apply to (ix) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, accrued expenses and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;
(c) intercompany Indebtedness among the Borrower and its Subsidiaries;
(d) obligations (contingent or otherwise) existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person current trade accounts payable incurred in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
extent that any such amounts constitute Indebtedness); (e) purchase money Indebtedness, subject to the limitations set forth in Section 8.01(i);
(fy) Indebtedness existing in or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z);
(g) other Indebtedness as long as after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01; and
(h) Guarantees under Interest Rate Protection Agreements and Other Hedging Agreements entered into with respect to other Indebtedness permitted under this Section 8.03Agreement; and (z) accrued and deferred management fees under any Management Agreement (to the extent that any such amounts constitute Indebtedness); or
(ii) any Contingent Obligations (excluding Contingent Obligations relating to Customary Non-Recourse Exclusions except to the extent a personal recourse claim is made in connection therewith) of the U.S. Borrower in respect of Non-Recourse Indebtedness, if the aggregate amount of such Contingent Obligations that are incurred by the U.S. Borrower in respect of Non-Recourse Indebtedness after the Effective Date and remain outstanding exceeds 3% of the Adjusted Total Assets of the U.S. Borrower.
Appears in 2 contracts
Samples: Credit Agreement (Host Marriott L P), Credit Agreement (Host Marriott Corp/)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness set forth on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or existing on the Lenders than Closing Date and set forth in Schedule 7.03(b) (and renewals, refinancings, and extensions thereof which do not increase the principal amount thereof and are otherwise on terms of any agreement or instrument governing and conditions satisfactory to the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rateAdministrative Agent in its sole discretion);
(c) intercompany purchase money Indebtedness among (including obligations in respect of Capital Leases but excluding Synthetic Leases) hereafter incurred by the Borrower Loan Parties or any of their Subsidiaries (except Foreign Subsidiaries) to finance the purchase of fixed assets, provided that (i) such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed, (ii) no such Indebtedness shall be refinanced for a principal amount in excess of the principal balance outstanding thereon at the time of such refinancing and its Subsidiaries(iii) the total amount of all such Indebtedness at any time outstanding shall not exceed $2,500,000;
(d) obligations (contingent or otherwise) of any Loan Party or any Subsidiary (except any Foreign Subsidiary) existing or arising under any Swap ContractHedge Agreement, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract Hedge Agreement does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) purchase money Indebtedness, subject intercompany Indebtedness permitted under Section 7.02(h); provided that the terms of such intercompany Indebtedness is reasonably satisfactory to the limitations set forth Administrative Agent and, if evidenced by an instrument, pledged and delivered to the Administrative Agent pursuant to the Security Agreement as additional collateral security for the Obligations, and the obligations under such Indebtedness shall be subordinated to the Obligations in Section 8.01(i)a manner reasonably satisfactory to the Administrative Agent;
(f) Subordinated Indebtedness existing of the Loan Parties in an aggregate principal amount not to exceed $30,000,000 at any time outstanding; provided that such Subordinated Indebtedness (i) has a maturity date that is not earlier than the six (6) month anniversary of the Maturity Date in respect of the Term Loan and (ii) by its terms, does not require amortization payments, or, except as a result of a “change of control” or relating to real estate acquired by a Loan Party or a Subsidiary for transmissiondefault thereunder, distribution or right-of-way purposes or in connection with its usual operationsredemption payments, subject prior to the limitations set forth in Section 8.01(z);maturity thereof
(g) other Indebtedness as long as after giving effect thereto assumed by any Loan Party (including the Borrower Person or Property acquired) in connection with a Permitted Acquisition and any Indebtedness of the Person or Property acquired which is not retired in compliance connection with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01; andsuch transaction;
(h) The endorsement in the ordinary course of business of negotiable instruments for deposit or collection;
(i) Guarantees by any Loan Party with respect to (i) Indebtedness permitted under this Section 8.037.03 and (ii) reinsurance obligations of the Captive Insurance Subsidiaries, provided the aggregate amount at any one time outstanding subject to such Guarantees of such reinsurance obligations shall not exceed $12,000,000;
(j) Obligations under letters of credit issued for the account of the Target prior to the date hereof and set forth on Schedule 7.03(j);
(k) Indebtedness under the Convertible Notes;
(l) Provided that no Default or Event of Default has occurred and is continuing hereunder at the time of incurrence, additional Indebtedness of any Loan Party in an aggregate principal amount not to exceed $2,500,00 at any time outstanding;
(m) Obligations with respect to earnout payments required to be paid in connection with Permitted Acquisitions; and
(n) Indebtedness of Foreign Subsidiaries arising from trade payables unpaid for more than ninety (90) days in an aggregate amount not in excess of $1,000,000.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Providence Service Corp), Credit and Guaranty Agreement (Providence Service Corp)
Indebtedness. Create, incur, assume or suffer to exist any IndebtednessIndebtedness of any Subsidiary of the Borrower, except:
(a) Indebtedness under outstanding on the Loan Documents;
(b) Indebtedness set forth date hereof and listed on Schedule 8.03 (7.02 and any refinancings, refundings, renewals, refinancings and replacements or extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal refunding, renewal, replacement or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing the foregoing and by an amount equal to any existing commitments unutilized thereunder and thereunder;
(iib) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, Guarantees in respect of Indebtedness otherwise permitted hereunder of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rateother Subsidiary;
(c) intercompany Indebtedness among the Borrower and its Subsidiaries;
(d) obligations (contingent or otherwise) of any Subsidiary existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view”;” and
(d) other Indebtedness that is either unsecured or secured by Liens that are otherwise permitted by Section 7.01(l), so long as the aggregate principal amount of Indebtedness incurred pursuant to this clause (d), when combined (without duplication) with the aggregate principal amount of Indebtedness secured by Xxxxx permitted by Section 7.01(l), does not at any time exceed the Maximum Priority Debt Limit; provided that the Maximum Priority Debt Limit may be exceeded pursuant to this subsection (i) at any time if such amount were satisfied at the date of incurrence but the Maximum Priority Debt Limit later decreased as a result of a decrease in Consolidated Total Assets or (ii) at the time of any refinancing, refunding, renewal, replacement or extension of any Indebtedness that was incurred at a time when the Maximum Priority Debt Limit was satisfied so long as the aggregate principal amount of such Swap Contract refinancing, refunding, renewal, replacement or extension does not contain any provision exonerating exceed the non-defaulting party from its obligation amount then outstanding except by an amount equal to make payments on outstanding transactions to a premium or other amount paid, and accrued and unpaid interest, and fees and expenses incurred in connection with the defaulting partyforegoing;
(e) purchase money IndebtednessIndebtedness of a Person existing at the time such Person became a Subsidiary and not created in contemplation thereof, subject and any refinancing, refunding, renewal, replacement or extension of the foregoing, so long as the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal, replacement or extension except by an amount equal to a premium or other amount paid, and accrued and unpaid interest, and fees and expenses incurred, in connection with the limitations set forth in Section 8.01(i)foregoing and by an amount equal to any existing commitments unutilized thereunder;
(f) Indebtedness existing in incurred to finance the acquisition, construction, repair, replacement or relating to real estate acquired by a Loan Party improvement of any fixed or a Subsidiary for transmissioncapital assets, distribution or right-of-way purposes or including Indebtedness assumed in connection with its usual operations, subject the acquisition of any such assets or secured by a Lien on any such assets prior to the limitations set forth in Section 8.01(z)acquisition thereof; provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction, repair, replacement or improvement;
(g) other Indebtedness as long as after giving effect thereto owing by any Subsidiary of the Borrower is in compliance with to either (i) the financial covenant in Section 8.11 on a Pro Forma Basis, subject to Borrower or (ii) any other Subsidiary of the limitations set forth in Section 8.01Borrower; and
(h) Guarantees with Indebtedness in respect of workers’ compensation claims, self-insurance obligations, performance, indemnity, surety, judgment, appeal, advance payment, customs, VAT or other tax or other guarantees or other similar bonds, instruments or obligations and completion guarantees and warranties provided by any Subsidiary or relating to Indebtedness permitted under this Section 8.03liabilities, obligations, indemnities or guarantees incurred in the ordinary course of business or pursuant to any governmental or regulatory requirements.
Appears in 2 contracts
Samples: Credit Agreement (Qualcomm Inc/De), Credit Agreement (Qualcomm Inc/De)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under (A) the Loan Documents, including, without limitation, Incremental Term Loans and Incremental Revolving Loans, (B) the 2022 Senior Notes (and any Permitted Refinancing of the 2022 Senior Notes) in an aggregate principal amount not to exceed $1,375,000,000, and (C) the 2021 Senior Notes (and any Permitted Refinancing of the 2021 Senior Notes) in an aggregate principal amount not to exceed $525,000,000;
(b) Indebtedness set forth outstanding on the Closing Date and listed on Schedule 8.03 (7.03 and renewals, refinancings and extensions any Permitted Refinancing thereof); provided that any such Indebtedness (including any Permitted Refinancing thereof), to the extent owed by a Loan Party to a Subsidiary that is not a Loan Party, shall be subordinated to the payment of the Obligations in a manner reasonably satisfactory to the Administrative Agent;
(i) Guarantees by the amount Borrower or any Guarantor in respect of such Indebtedness is not increased at otherwise permitted hereunder of the time of such refinancingBorrower or any Guarantor, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) Guarantees by any Subsidiary that is not a Loan Party in respect of Indebtedness otherwise permitted hereunder of the terms relating Borrower or any Subsidiary and (iii) Guarantees by the Borrower or any Guarantor in respect of Indebtedness otherwise permitted hereunder by Subsidiaries that are not Loan Parties to principal amount, amortization, maturity, collateral (if any) and subordination (if anythe extent such Guarantee constitutes an Investment permitted by Section 7.02(c)(i), and other material terms taken as a whole7.02(c)(iv), of any such refinancing, renewal 7.02(o) or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;
(c) intercompany Indebtedness among the Borrower and its Subsidiaries7.02(r)(i);
(d) obligations (contingent or otherwise) of the Borrower or any Subsidiary existing or hereafter arising under any Swap Contract, ; provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
party (e) purchase money Indebtedness, subject other than pursuant to the limitations set forth in Section 8.01(icustomary netting or set-off provisions);
(f) Indebtedness existing in or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z);
(g) other Indebtedness as long as after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01; and
(h) Guarantees with respect to Indebtedness permitted under this Section 8.03.
Appears in 1 contract
Indebtedness. CreateNo Loan Party shall, nor shall they permit any Subsidiary to, directly or indirectly, create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) intercompany Indebtedness set forth on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest ratepermitted under Section 7.02;
(c) intercompany Indebtedness among the Borrower and its Subsidiaries;
(d) obligations (contingent or otherwise) existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” ”; and (ii) such Swap Contract does not contain any provision exonerating the non-non defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(ed) purchase money Indebtednesswithout duplication, subject to the limitations set forth in Section 8.01(i);
(f) Indebtedness existing in or relating to real estate acquired Guarantees by a Loan Party or any Subsidiary in respect of any Indebtedness otherwise permitted hereunder;
(e) Indebtedness set forth in Schedule 7.03 (and renewals, refinancing and extensions thereof), provided that the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a Subsidiary for transmissionreasonable premium or other reasonable amount paid, distribution or right-of-way purposes or and fees and expenses reasonably incurred, in connection with its usual operationssuch refinancing and by an amount equal to any existing commitments utilized thereunder (for purposes of clarity, subject to it is understood that Funded Indebtedness on Schedule 7.03 is included in calculating the limitations financial covenants in Section 7.10); and
(f) other Funded Indebtedness (including (i) any portion of any renewal, financing, or extension of Indebtedness set forth in Section 8.01(z);
Schedule 7.03 to the extent such portion does not meet the criteria set for the in the proviso of clause (ge) other above and (ii) Indebtedness evidenced by the Revolving Credit Documents) as long as as, after giving effect thereto thereto, the Borrower is Loan Parties are in compliance with the financial covenant covenants in Section 8.11 7.10, on a Pro Forma Basispro forma basis as if such Indebtedness had been incurred as of the last day of the most recent fiscal quarter for which financial statements have been delivered pursuant to Section 6.01 (or if such Indebtedness exists as of the Closing Date, subject to the limitations set forth in Section 8.01; and
(h) Guarantees with respect to Indebtedness permitted under this Section 8.03as of June 30, 2011).
Appears in 1 contract
Samples: Term Loan Agreement (Retail Opportunity Investments Corp)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness set forth listed on Schedule 8.03 7.03 that is outstanding on the Closing Date;
(and renewals, refinancings and extensions thereof)c) Guarantees of the Borrower or any of its Subsidiaries in respect of Indebtedness of the Borrower or any of its Subsidiaries otherwise permitted hereunder; provided that (i) Loan Parties may (A) issue Guarantees under this clause only in respect of Indebtedness of other Loan Parties and (B) issue Guarantees of Indebtedness of Excluded Subsidiaries that does not exceed, when added to the amount of such Indebtedness is not increased all deposits to secure letters of credit for the account of a Foreign Subsidiary under Section 7.01(f), $25,000,000 in the aggregate at the any time of such refinancingoutstanding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and Excluded Subsidiaries may issue Guarantees of Indebtedness of other material terms taken Subsidiaries so long as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;
(c) intercompany Indebtedness among the Borrower and its Subsidiariesis permitted hereunder;
(d) obligations (contingent or otherwise) existing or arising under any Swap Contract, ; provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) purchase money Indebtednessintercompany Indebtedness constituting an Investment that is permitted under Sections 7.02(b), subject to the limitations set forth in Section 8.01(i7.02(d), 7.02(e), 7.02(f), 7.02(g), 7.02(l) or 7.02(m);
(f) unsecured Indebtedness existing in of any Loan Party; provided that (i) after giving effect to such Indebtedness, the Consolidated Total Leverage Ratio calculated on a Pro Forma Basis shall be less than or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject equal to the limitations then current maximum ratio set forth in Section 8.01(z7.17(a), (ii) the scheduled maturity date of such Indebtedness is no earlier than three (3) months after the Maturity Date and such Indebtedness does not contain any provisions providing for a holder put right or mandatory repurchase obligation of any Loan Party prior to such date (other than customary asset sale and change of control repurchase obligations), (iii) the financial covenants and other negative covenants in the definitive documentation for such Indebtedness shall be no more materially restrictive (taken as a whole) than the financial and other negative covenants set forth herein in the reasonable determination of the Borrower, (iv) the other terms and conditions of the definitive documentation for such Indebtedness, taken as a whole, shall be customary for definitive documentation of Indebtedness of similarly situated issuers of similar forms of Indebtedness at such time in the reasonable determination of the Borrower, and (v) no Default has occurred and is continuing or could reasonably be expected to result therefrom;
(g) other Indebtedness as so long as after giving effect thereto (i) no Event of Default has occurred and is continuing or would result therefrom and (ii) the Borrower is and its Consolidated Subsidiaries shall be in compliance with the financial covenant in Section 8.11 on a Pro Forma BasisBasis with Section 7.17 after giving effect to such transaction, subject secured Indebtedness in an aggregate principal amount not to exceed the greater of (A) $100,000,000 or (B) 15% of Consolidated Tangible Assets at any time outstanding; provided that such Indebtedness is not contractually senior in right of payment to the limitations payment of the Indebtedness arising under this Agreement and the Loan Documents and either (x) was assumed or existed in connection with a Permitted Acquisition and the Liens securing such Indebtedness do not at any time encumber any Property other than the Property acquired in such Permitted Acquisition, or (y) is purchase money Indebtedness (including Capitalized Leases or Off-Balance Sheet Obligations) so long as (i) such Indebtedness is created and any Lien attaches to such Property concurrently with or within forty-five (45) days of the acquisition thereof, and (ii) such Lien does not at any time encumber any Property other than the Property financed by such Indebtedness;
(h) so long as (i) no Event of Default has occurred and is continuing or would result therefrom and (ii) the Borrower and its Consolidated Subsidiaries shall be in compliance on a Pro Forma Basis with Section 7.17 after giving effect to such transaction, unsecured Indebtedness (including reimbursement obligations under letters of credit and obligations in respect of performance bonds and completion guarantees) of the Loan Parties in an aggregate principal amount not to exceed $75,000,000 at any time outstanding; provided, that such Indebtedness is not contractually senior in right of payment to the payment of the Indebtedness arising under this Agreement and the Loan Documents;
(i) Indebtedness arising from any agreement entered into by the Borrower or any Subsidiary providing for customary indemnification, purchase price adjustment, contingent consideration or similar obligations, in each case, incurred or assumed in connection with an Acquisition or Disposition permitted hereunder;
(j) [reserved];
(k) Indebtedness representing a refinancing, refunding, renewal or extension of Indebtedness (x) permitted by clauses (b) or (f) above or clause (l) below; provided, that (i) the principal amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension (except in an amount not to exceed all fees, costs and other expenses incurred in connection with such refinancing, refunding, renewal or extension), (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, refunding, renewing or extending Indebtedness, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the Loan Parties or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, refunded, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness shall be consistent with market conditions at the time such refinancing, refunding, renewal or extension is consummated, (iii) with respect to any debt incurred pursuant to Section 7.03(f), the maturity date is no earlier than three (3) months after the Maturity Date, and (iv) with respect to any Indebtedness incurred pursuant to Section 7.03(f) above as long as the conditions to the incurrence thereof as set forth in Section 8.01clause (f) remain true and correct at the time of and after giving effect to such refinancing, renewal or extension, and (y) permitted by clause (h) above, as long as the conditions to the incurrence thereof remain true and correct at the time of and after giving effect to such refinancing, renewal or extensions;
(l) Indebtedness of Excluded Subsidiaries in an aggregate principal amount not to exceed $50,000,000 at any time outstanding;
(m) obligations (including in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business) in respect of bids, tenders, trade contracts, governmental contracts and leases, construction contracts, statutory obligations, surety, stay, customs, bid, and appeal bonds, performance and return of money bonds, performance and completion guarantees, agreements with utilities and other obligations of a like nature (including those to secure health, safety and environmental obligations), in each case in the ordinary course of business and either (i) consistent with past practices or (ii) reasonably necessary for the operation of the business of the Borrower and its Subsidiaries;
(n) Indebtedness consisting of the financing of insurance premiums in the ordinary course of business;
(o) customary Indebtedness under or in respect of Cash Management Services Agreements entered into in the ordinary course of business:
(p) Indebtedness representing deferred compensation, severance, pension and health and welfare retirement benefits or the equivalent to current or former officers, directors, managers, employees, members of management and consultants of the Borrower and the Subsidiaries incurred in the ordinary course of business;
(q) Indebtedness arising in connection with judgments against Borrower or its Subsidiaries to the extent such judgment is not an Event of Default hereunder; provided however, such Indebtedness under this clause (q) shall not exceed the Threshold Amount; and
(hr) Guarantees with respect to Indebtedness permitted under this Section 8.03Permitted Warrant Transactions that constitute Indebtedness.
Appears in 1 contract
Samples: Credit Agreement (Integra Lifesciences Holdings Corp)
Indebtedness. Create, incur, incur or assume or suffer to exist any Indebtedness, except:
: (a) Indebtedness under the Loan Documents;
; (b) Indebtedness set forth listed on Schedule 8.03 7.03 that is outstanding on the Closing Date; (and renewals, refinancings and extensions thereof)c) Guarantees of the Borrower or any of its Subsidiaries in respect of Indebtedness of the Borrower or any of its Subsidiaries otherwise permitted hereunder; provided that (i) Loan Parties may (A) issue Guarantees under this clause only in respect of Indebtedness of other Loan Parties and (B) issue Guarantees of Indebtedness of Excluded Subsidiaries that does not exceed, when added to the amount of such Indebtedness is not increased all deposits to secure letters of credit for the account of a Foreign Subsidiary under Section 7.01(f), $40,000,000 in the aggregate at the any time of such refinancingoutstanding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and Excluded Subsidiaries may issue Guarantees of Indebtedness of other material terms taken Subsidiaries so long as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;
(c) intercompany Indebtedness among the Borrower and its Subsidiaries;
is permitted hereunder; -104- (d) obligations (contingent or otherwise) existing or arising under any Swap Contract, ; provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
; (e) purchase money intercompany Indebtedness constituting an Investment that is permitted under Section 7.02(b), 7.02(d), 7.02(e), 7.02(f), 7.02(g), 7.02(l), 7.02(m) or 7.02(u); (f) unsecured Indebtedness of any Loan Party; provided that (i) after giving effect to such Indebtedness, subject the Consolidated Total Leverage Ratio calculated on a Pro Forma Basis shall be less than or equal to the limitations then current maximum ratio set forth in Section 8.01(i7.17(a);
, (fii) the scheduled maturity date of such Indebtedness existing in is no earlier than three (3) months after the Maturity Date and such Indebtedness does not contain any provisions providing for a holder put right or relating to real estate acquired by a mandatory repurchase obligation of any Loan Party or prior to such date (other than customary asset sale and change of control repurchase obligations or, with respect to Convertible Indebtedness, customary fundamental change obligations), (iii) the financial covenants and other negative covenants in the definitive documentation for such Indebtedness shall be no more materially restrictive (taken as a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to whole) than the limitations financial and other negative covenants set forth herein in Section 8.01(z);
the reasonable determination of the Borrower, (iv) the other terms and conditions of the definitive documentation for such Indebtedness, taken as a whole, shall be customary for definitive documentation of Indebtedness of similarly situated issuers of similar forms of Indebtedness at such time in the reasonable determination of the Borrower, and (v) no Default has occurred and is continuing or could reasonably be expected to result therefrom; (g) other Indebtedness as so long as after giving effect thereto (i) no Event of Default has occurred and is continuing or would result therefrom and (ii) the Borrower is and its Consolidated Subsidiaries shall be in compliance with the financial covenant in Section 8.11 on a Pro Forma BasisBasis with Section 7.17 after giving effect to such transaction, subject secured Indebtedness in an aggregate principal amount not to exceed the greater of (A) $150,000,000 or (B) 33% of Consolidated EBITDA of the Borrower and its consolidated Subsidiaries at any time outstanding; provided that such Indebtedness is not contractually senior in right of payment to the limitations set forth payment of the Indebtedness arising under this Agreement and the Loan Documents and either (x) was assumed or existed in Section 8.01connection with a Permitted Acquisition and the Liens securing such Indebtedness do not at any time encumber any Property other than the Property acquired in such Permitted Acquisition, or (y) is purchase money Indebtedness (including Capitalized Leases or Off-Balance Sheet Obligations) so long as (i) such Indebtedness is created and any Lien attaches to such Property concurrently with or within forty-five (45) days of the acquisition thereof, and (ii) such Lien does not at any time encumber any Property other than the Property financed by such Indebtedness; and
(h) Guarantees so long as (i) no Event of Default has occurred and is continuing or would result therefrom and (ii) the Borrower and its Consolidated Subsidiaries shall be in compliance on a Pro Forma Basis with Section 7.17 after giving effect to such transaction, unsecured Indebtedness (including reimbursement obligations under letters of credit and obligations in respect of performance bonds and completion guarantees) of the Loan Parties in an aggregate principal amount not to exceed the greater of (x) $150,000,000 and (y) 33% of Consolidated EBITDA of the Borrower and its consolidated Subsidiaries at any time outstanding; provided, that such Indebtedness permitted is not contractually senior in right of payment to the payment of the Indebtedness arising under this Agreement and the Loan Documents;
(i) Indebtedness arising from any agreement entered into by the Borrower or any Subsidiary providing for customary indemnification, purchase price adjustment, contingent consideration or similar obligations, in each case, incurred or assumed in connection with an Acquisition or Disposition permitted hereunder; (j) Indebtedness in the form of notes that are (at the option of the Borrower) unsecured or secured by the Collateral on a pari passu or junior lien basis (“Incremental Notes”) in an amount not to exceed, together with any Incremental Facilities incurred pursuant to Section 8.03.2.16, the Incremental Amount; provided that such Incremental Notes (i) do not mature prior to the latest final maturity date of, or have a shorter weighted average life than, any class of then outstanding Loans under the Facilities, (ii) have covenants and defaults no more restrictive (excluding pricing and optional prepayment and redemption terms), when taken as a whole, than those under the Facilities (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of any Class of then outstanding Loans under the Facilities or (y) reasonably satisfactory to the Administrative Agent), (iii) do not require mandatory prepayments to be made except to the extent required to be applied pro rata to the Term Loans and any first lien secured Incremental Notes, (iv) to the extent secured, shall not be secured by any lien on any asset of the Borrower or any Subsidiary that does not also secure the Facilities, or be guaranteed by any person other than the Subsidiary Guarantors and (v) to the extent secured, shall be subject to customary intercreditor terms reasonably agreed between the Borrower and the Administrative Agent;
Appears in 1 contract
Samples: Credit Agreement (Integra Lifesciences Holdings Corp)
Indebtedness. CreateThe Borrowers will not, incurnor will they permit any Subsidiary to, assume create, incur or suffer to exist any Indebtedness, except:
(ai) Indebtedness under The Loans and the Loan DocumentsReimbursement Obligations;
(ii) Indebtedness (including Contingent Obligations) existing on the date hereof and described in the Disclosure Schedule;
(iii) Indebtedness arising under Financial Contracts permitted by Section 7.9;
(iv) Contingent Obligations permitted by Section 7.8;
(v) non-recourse Indebtedness in a restricted or special purpose Subsidiary (for which consent of the Required Lenders must be obtained) and as to which none of the Credit Parties (i) provides any guaranty or credit support of any kind (including any undertaking, guarantee, indemnity, agreement or instrument that would constitute Indebtedness) or (ii) is directly or indirectly liable (as a guarantor or otherwise); provided, that after giving effect to such Indebtedness outstanding from time to time, the Credit Parties are not in violation of any of the financial covenants of Article 8;
(vi) normal and ordinary course trade Indebtedness and customary obligations relating to the operation of oil and gas producing properties, drilling rigs and gathering and processing systems and midstream asset operations which are not greater than 90 days past invoice or delinquent or which are being contested in good faith by appropriate action and for which adequate reserves have been maintained in accordance with GAAP;
(vii) unsecured senior indebtedness not in excess of $20,000,000 in total;
(viii) lease obligations (including building and office leases and leases for equipment) which would cause the aggregate amount of all rental payments in any calendar year to be greater than $20,000,000;
(a) the Existing Subordinated Notes and (b) other subordinated Indebtedness set forth on Schedule 8.03 (and renewals, refinancings and extensions thereof); including subordinated Indebtedness convertible to equity) provided that (i) the amount of such Indebtedness is not increased at the time of incurring such refinancingsubordinated Indebtedness (A) no Default, renewal Event of Default or extension except by an amount equal Deficiency has occurred and is then continuing and (B) no Default, Event of Default or Deficiency would result from the incurrence of any such subordinated Indebtedness after giving effect to a reasonable premium or other reasonable amount paidthe incurrence of such Indebtedness (and any concurrent repayment of Indebtedness with the proceeds of such incurrence), and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) no subordinated Indebtedness has any scheduled amortization prior to six (6) months after the terms relating to principal amount, amortization, maturity, collateral Facility Termination Date; (if anyiii) and subordination no subordinated Indebtedness matures sooner than six (if any), and 6) months after the Facility Termination Date; (iv) the other material terms of all such subordinated Indebtedness are not generally more restrictive, taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended this Agreement and the interest rate applicable to other Loan Documents or the Existing Subordinated Notes; and (v) the Borrowing Base is adjusted as contemplated by Section 2.6.8 and the Borrowers make any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rateprepayment required under Section 2.8.2;
(cx) intercompany Indebtedness among usual and customary insurance premiums financed in the Borrower and its Subsidiariesnormal course of business;
(dxi) obligations Indebtedness regarding self-insured liabilities, including retentions under insurance policies;
(contingent or otherwisexii) existing or arising under any Swap Contract, provided that miscellaneous items of unsecured Indebtedness not described in subsections (i) such obligations are through (or werexi) entered into by such Person above which do not in the ordinary course total (taking into account all such Indebtedness of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (iiCredit Parties) such Swap Contract does not contain exceed $40,000,000 at any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) purchase money Indebtedness, subject to the limitations set forth in Section 8.01(i);
(f) Indebtedness existing in or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z);
(g) other Indebtedness as long as after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01one time outstanding; and
(hxiii) Guarantees with respect 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 remaining weighted average life to Indebtedness permitted under this Section 8.03.maturity thereof;
Appears in 1 contract
Samples: Senior Credit Agreement (Unit Corp)
Indebtedness. CreateSubject to the last sentence of this Section 6.01, the Borrower will not, nor will it permit any of the Subsidiary Guarantors to, create, incur, assume or suffer permit to exist any Indebtedness, except:
(a) Indebtedness created hereunder or under the any other Loan DocumentsDocument;
(b) Secured Longer-Term Indebtedness set forth on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that Unsecured Longer-Term Indebtedness so long as (i) the amount of such Indebtedness is not increased no Default exists at the time of such refinancingthe incurrence thereof, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amountaggregate amount of such Secured Longer-Term Indebtedness and Unsecured Longer-Term Indebtedness, amortizationtaken together with other then-outstanding Indebtedness, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the amount required to comply with the provisions of Sections 6.07(c) and (d), and (iii) prior to and 77 Revolving Credit Agreement immediately after giving effect to the incurrence of any Secured Longer-Term Indebtedness or Unsecured Longer-Term Indebtedness, the Covered Debt Amount does not or would not exceed the Borrowing Base then applicable market interest ratein effect;
(c) intercompany Indebtedness among the Borrower and its SubsidiariesOther Permitted Indebtedness;
(d) Guarantees of Indebtedness otherwise permitted hereunder;
(e) Indebtedness of any Obligor owing to any other Obligor or, if such Indebtedness is subject to subordination terms and conditions that are satisfactory to the Administrative Agent, any other Subsidiary of the Borrower;
(f) [Reserved];
(g) repurchase obligations (contingent or otherwise) existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for with respect to U.S. Government Securities;
(h) obligations payable to clearing agencies, brokers or dealers in connection with the purpose purchase or sale of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes securities in the value ordinary course of securities issued by such Personbusiness;
(i) Secured Shorter-Term Indebtedness so long as (i) no Default exists at the time of the incurrence thereof, and not for purposes of speculation or taking a “market view;” and (ii) the aggregate amount (determined at the time of the incurrence of such Swap Contract Indebtedness) of such Indebtedness does not contain any provision exonerating exceed the nongreater of (A) $20,000,000 and (B) 5% of Borrower Net Worth, (iii) the aggregate amount of such Indebtedness, taken together with other then-defaulting party from its obligation outstanding Indebtedness, does not exceed the amount required to make payments on outstanding transactions comply with the provisions of Sections 6.07(c) and (d), and (iv) prior to and immediately after giving effect to the defaulting partyincurrence of any such Indebtedness, the Covered Debt Amount does not or would not exceed the Borrowing Base then in effect;
(ej) purchase money Indebtedness, subject to the limitations set forth obligations (including Guarantees) in Section 8.01(i)respect of Standard Securitization Undertakings;
(fk) Indebtedness existing in or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z)Permitted SBIC Guarantees;
(gl) other Indebtedness as long as after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01[Reserved]; and
(hm) Guarantees Unsecured Shorter-Term Indebtedness (other than Special Unsecured Indebtedness that would otherwise constitute Unsecured Shorter-Term Indebtedness) so long as (i) no Default exists at the time of the incurrence thereof, (ii) the aggregate amount (determined at the time of the incurrence of such Indebtedness) of such Indebtedness does not exceed $500,000,000, (iii) the aggregate amount (determined at the time of the incurrence of such Indebtedness) of such Indebtedness, taken together with respect then-outstanding Special Unsecured Indebtedness incurred pursuant to Section 6.01(n), does not exceed $1,000,000,000, (iv) the aggregate amount of such Indebtedness, taken together with other then-outstanding Indebtedness, does not exceed the amount required to comply with the provisions of Section 6.07(c) and (d), and (v) prior to and immediately after giving effect to the incurrence of any such Indebtedness, the Covered Debt Amount does not or would not exceed the Borrowing Base then in effect;
(n) Special Unsecured Indebtedness permitted under this so long as (i) no Default exists at the time of the incurrence thereof, (ii) the aggregate amount (determined at the time of the incurrence of such Indebtedness) of such Indebtedness does not exceed $1,000,000,000, (iii) the aggregate amount (determined at the time of the incurrence of such Indebtedness) of such Indebtedness, taken together with then-outstanding Unsecured Shorter-Term Indebtedness incurred pursuant to Section 8.03.6.01(m), does not exceed $1,000,000,000, (iv) the aggregate amount of such Indebtedness, taken together with other then-outstanding Indebtedness, does not exceed the amount required to comply with the provisions of Section 6.07(c) and (d), and (v) prior to and immediately after giving effect to the incurrence of any such Indebtedness, the Covered Debt Amount does not or would not exceed the Borrowing Base then in effect;
(o) Indebtedness incurred pursuant to the 2023 Notes, the 2024 Notes, the 2025 March Notes, the 2025 July Notes or the 2026 Notes; and
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Owl Rock Capital Corp)
Indebtedness. Create, incur, assume or suffer to exist any IndebtednessIndebtedness (exclusive of trade debt) except in respect of (i) Indebtedness to the Lenders; (ii) Indebtedness incurred for capital expenditures permitted under Section 7.6 hereof; (iii) Indebtedness due under the Subordinated Note Documentation or any refinancing thereof, except:
provided that such refinancing shall not be materially more onerous to the Borrower and shall contain subordination terms substantially similar to those contained in the Subordinated Note Documentation and such other terms which are acceptable to the Administrative Agent in all respects; (iv) subordinated Indebtedness incurred in connection with (a) Indebtedness under any investment permitted by the Loan Documents;
proviso of Section 7.4 and otherwise complying with the conditions thereof and (b) any repurchase of capital stock or options from terminated employees in accordance with the provisions of Section 7.7 hereof; (v) Indebtedness set forth on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) the amount in respect of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;
(c) intercompany Indebtedness among the Borrower and its Subsidiaries;
(d) obligations (contingent or otherwise) existing or arising under any Swap Contract, provided that (i) such obligations are (or were) hedge agreements entered into by such Person in the ordinary course of business for to protect the purpose Borrower or any of directly mitigating risks associated with liabilities, commitments, investments, assets, its Subsidiaries against fluctuations in interest rates or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, currency valuations and not for purposes speculative purposes; (vi) Indebtedness deemed to exist pursuant to guarantees which are permitted by Section 7.3 hereof; (vii) Indebtedness existing as of speculation or taking a “market view;” the Closing Date as set forth in Schedule 7.8 and (ii) refinancing thereof not to exceed the aggregate amount of Indebtedness existing as of the Closing Date and so long as such Swap Contract refinancing does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions terms which are materially more onerous to the defaulting party;
Borrower than the existing arrangement; (eviii) purchase money Indebtedness secured by Liens which are permitted under Section 7.2 hereof including under capitalized leases so long as the amount of such Indebtedness, subject to including capitalized leases, 72 79 does not exceed the limitations set forth in Section 8.01(i);
(f) Indebtedness existing in or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z);
(g) other Indebtedness as long as after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01; and
(h) Guarantees with respect to Indebtedness amounts permitted under this Section 8.037.6 hereof; and (ix) unsecured Indebtedness not otherwise permitted hereunder not to exceed $5,000,000 in the aggregate principal amount at any one time outstanding.
Appears in 1 contract
Samples: Revolving Credit, Equipment Loan, Term Loan and Security Agreement (McMS Inc /De/)
Indebtedness. CreateThe Company will not, nor will it permit any Restricted Subsidiary to, issue, incur, assume assume, create, or suffer have outstanding any indebtedness for borrowed money (including as such for all purposes of this Agreement any indebtedness representing the deferred purchase price of property (accounts payable for the purchase of goods on ordinary trade terms shall not be deemed indebtedness for the deferred purchase price of property for purposes of this Agreement), any liability in respect to exist banker's acceptances, any Indebtednessindebtedness, exceptwhether or not assumed, secured by liens on property acquired by the Company or any Restricted Subsidiary existing at the time of the acquisition thereof, and the liability of the Company or any Restricted Subsidiary under any lease which should be capitalized under GAAP); provided, however, that the foregoing provisions shall not restrict nor operate to prevent:
(a) Indebtedness with respect to the Company and the Guarantors, so long as the Company has and retains a Xxxxx'x Rating of Baa3 or higher or an S&P Rating of BBB- or higher:
(i) any and all indebtedness owing to the Issuing Banks and the Lenders under the Loan Documents;
(ii) indebtedness described on Schedule 8.9 attached hereto; and
(iii) any and all other indebtedness so long as at the time of, and after giving effect to, the incurrence of any such indebtedness no Default or Event of Default exists;
(b) Indebtedness set forth on Schedule 8.03 with respect to the Company and the Guarantors, at any time when clause (and renewals, refinancings and extensions thereof); provided that a) above is not in effect:
(i) any and all indebtedness owing to the Issuing Banks and the Lenders under the Loan Documents;
(ii) purchase money indebtedness;
(iii) indebtedness described on Schedule 8.9 attached hereto;
(iv) indebtedness arising from the issuance of letters of credit in the ordinary course of business;
(v) indebtedness issued in accordance with clause (a) above outstanding at the time when clause (a) is no longer in effect as reduced from time to time by payments made thereon; and
(vi) additional indebtedness not otherwise permitted by this clause (b) in an aggregate amount not to exceed $50,000,000 at any one time outstanding, provided that such amount shall be reduced (but not below zero) dollar-for-dollar by the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and indebtedness permitted under clause (iib)(v) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rateabove which exceeds $150,000,000;
(c) intercompany Indebtedness among the Borrower and its Subsidiarieswith respect to any Restricted Subsidiaries that are not Guarantors:
(i) purchase money indebtedness;
(dii) obligations (contingent indebtedness of any Restricted Subsidiary owing to the Company or otherwise) existing or any other Subsidiary arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting partybusiness;
(eiii) purchase money Indebtedness, subject to indebtedness of any newly-acquired Restricted Subsidiary existing at the limitations set forth time of the acquisition and not incurred in Section 8.01(i)contemplation of such acquisition;
(fiv) Indebtedness existing in or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z)indebtedness described on Schedule 8.9 attached hereto;
(gv) other Indebtedness as long as after giving effect thereto indebtedness arising from the Borrower is issuance of letters of credit in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01ordinary course of business;
(vi) Non-Recourse Debt of any Restricted Subsidiary; and
(hvii) Guarantees with respect to Indebtedness indebtedness not otherwise permitted under by this Section 8.03clause (c) aggregating not more than $10,000,000 at any one time outstanding.
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness set forth on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, ) of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rateextended);
(c) intercompany Indebtedness among the Borrower and its Subsidiariespermitted under Section 8.02;
(d) obligations (contingent or otherwise) existing or arising under any Swap Contract, ; provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) purchase money IndebtednessIndebtedness (including obligations in respect of Capital Leases or Synthetic Leases) hereafter incurred to finance the purchase of fixed assets, subject to and renewals, refinancings and extensions thereof; provided that (i) the limitations set forth in Section 8.01(i)aggregate outstanding principal amount of all such Indebtedness shall not exceed $50,000,000 at any one time outstanding; and (ii) such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed;
(f) Indebtedness existing endorsement of negotiable instruments for deposit or collection or similar transactions in or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z)ordinary course of business;
(g) Indebtedness assumed in connection with any Permitted Acquisition but not incurred in contemplation thereof;
(h) to the extent constituting Indebtedness, surety or performance bonds with respect to contracts for the performance of work entered into by any Loan Party in the ordinary course of business;
(i) other unsecured Indebtedness as so long as after giving effect thereto (i) the Borrower is in compliance with the financial covenant in Section 8.11 Consolidated Leverage Ratio, calculated on a Pro Forma BasisBasis after giving effect to such Indebtedness on a Pro Forma Basis is less than 3.50:1.00, (ii) no Default exists or would result therefrom, (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 limitations set forth 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;
(j) earn-out obligations incurred in Section 8.01respect of any Permitted Acquisition; and
(hk) Guarantees with respect to Indebtedness permitted under this Section 8.03; provided that if a Loan Party Guarantees Indebtedness of a Foreign Subsidiary, such Guarantee must also be permitted by Section 8.02 (other than Section 8.02(g)).
Appears in 1 contract
Indebtedness. CreateHoldings shall not, and shall not permit any Subsidiary to create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents, including any Guaranty of the Secured Obligations issued by any Guarantor;
(b) Indebtedness set forth outstanding and listed on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate7.02;
(c) intercompany (i) unsecured Indebtedness among of the Borrower and its SubsidiariesSubsidiaries and (ii) Permitted Convertible Indebtedness of Holdings; provided that the aggregate principal amount of all such Indebtedness incurred pursuant to this clause (c) shall not exceed $250,000,000 at any one time outstanding;
(d) obligations any Permitted Convertible Indebtedness Option Transaction;
(contingent e) equity derivative transactions constituting Indebtedness of Holdings (other than any Permitted Bond Hedge Transaction or otherwisePermitted Warrant Transaction) existing or arising under any Swap Contract, that are accounted for as equity of Holdings in compliance with GAAP in accordance with EITF 00-19; provided that such transactions may not be settled in cash unless both immediately prior to and after giving effect to such settlement, (i) no Default or Event of Default shall exist or result therefrom and (ii) Holdings shall be in compliance with the covenants set forth in Section 7.07;
(f) Indebtedness in respect of Swap Contracts; provided that such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) purchase money Indebtedness, subject to the limitations set forth in Section 8.01(i);
(f) Indebtedness existing in or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z)speculation;
(g) Indebtedness incurred to finance the acquisition, construction or improvement of any assets, including Capital Lease Obligations and including any such Indebtedness incurred for such purpose within 270 days after such acquisition or completion of construction or improvement, and any Indebtedness assumed 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 the aggregate principal amount of Indebtedness permitted by this clause (g) shall not exceed $25,000,000 at any one time outstanding;
(i) Indebtedness of a Loan Party (other than Holdings) to another Loan Party and (ii) Indebtedness of any Subsidiary of the Borrower to any other Subsidiary or the Borrower, provided that any such Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or another Loan Party shall only be permitted to the extent constituting an Investment permitted under Section 7.10;
(i) Guarantees by Holdings or its Subsidiaries of Indebtedness otherwise permitted under this Section 7.02;
(j) Indebtedness arising from the netting services, overdraft protections or 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 or other cash management services in the ordinary course of business;
(k) Indebtedness of a Subsidiary, or Indebtedness attaching to an asset of a Person that is, acquired after the date of this Agreement or a corporation merged into or consolidated with the Borrower or any of its Subsidiaries after the Agreement and Indebtedness assumed in connection with the acquisition of assets, which Indebtedness in each case exists at the time of such acquisition, merger or consolidation and is not created in contemplation of such event and where such acquisition, merger or consolidation is permitted by this Agreement, provided that the aggregate amount of all such Indebtedness does not at any time exceed an amount at any time outstanding in excess of $10,000,000;
(l) Indebtedness incurred or arising in connection with the matters described in Sections 7.01(f), (h) and (w);
(m) Indebtedness in respect of the Senior Secured Note Documents in an aggregate principal amount not to exceed US$275,000,000;
(n) [Reserved];
(o) Indebtedness in respect of the ABL Documents in an aggregate principal amount not to exceed $60,000,000;
(p) Indebtedness incurred by Holdings or any of its Subsidiaries arising from agreements providing for indemnification, holdbacks, purchase price adjustments (based on changes in working capital or similar arrangements) and earn-outs in connection with a Permitted Acquisition, or from non-compete agreements, deferred compensation, consulting, incentive or similar obligations or from guaranties or letters of credit, surety bonds or performance bonds securing the performance of Holdings or any such Subsidiary pursuant to such agreements, in connection with permitted acquisitions (including Permitted Acquisitions) or permitted dispositions of any business, assets or Subsidiary of Holdings or any of its Subsidiaries;
(q) (i) tenant improvement loans and allowances and (ii) guaranties incurred in the ordinary course of business of the obligations of suppliers, customers, franchisees, lessees, landlords and licensees of Holdings and its Subsidiaries;
(r) accretion or amortization of original issue discount and accretion of interest paid in kind, in each case in respect of Indebtedness otherwise permitted by this Section 7.02;
(s) Indebtedness of Holdings or any of its Subsidiaries consisting of obligations to insurance companies to pay insurance premiums (including financed premiums) arising in the ordinary course of business and not in connection with the borrowing of money or Swap Contracts;
(t) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, customs, appeal or similar obligations incurred in the ordinary course of business or any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities (including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims), in each case in the ordinary course of business;
(u) Indebtedness issued or incurred (including by means of the extension or renewal of existing Indebtedness) to refinance, refund, extend, defease, discharge, renew or replace Indebtedness incurred pursuant to Sections 7.02(c), (g), (k), (m), (o), (u) or (x) (“Refinanced Indebtedness”); provided that (i) the principal amount of such refinancing, refunding, extending, defeasing, discharging, renewing or replacing Indebtedness is not greater than the principal amount of such Refinanced Indebtedness plus the amount of any premiums make-whole amounts or penalties and accrued and unpaid interest paid thereon and fees (including any closing fees and original issue discount) and expenses, in each case associated with such refinancing, refunding, extension, defeasance, discharge, renewal or replacement, (ii) such refinancing, refunding, extending, defeasing, discharging, renewing or replacing Indebtedness has a final maturity that is no sooner than, and a weighted average life to maturity that is no shorter than, such Refinanced Indebtedness, (iii) the obligors in respect of such Refinanced Indebtedness immediately prior to such refinancing, refunding, extending, defeasing, discharging, renewing or replacing are the only obligors on such refinancing, refunding extending, defeasing, discharging, renewing or replacing Indebtedness, (iv) the interest rate of such refinancing, refunding, extending, defeasing, discharging, renewing or replacing Indebtedness is not increased beyond applicable market interest rate at such time, (v) any Liens securing such Indebtedness are not extended to additional property of any Loan Party, and (vi) if the Refinanced Indebtedness was subordinated in right of payment to the Obligations, then the terms of the refinancing refunding, extending, defeasing, discharging, renewing or replacing Indebtedness must include subordination terms and conditions that are at least as long favorable to the Administrative Agent and the Lenders as after giving effect thereto those that were applicable to the Refinanced Indebtedness;
(v) Indebtedness consisting of promissory notes issued by Holdings or any Subsidiary to current or former officers, managers, consultants, directors and employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) to finance the purchase or redemption of capital stock or securities convertible into capital stock of Holdings or any Parent;
(w) [Reserved];
(x) other Indebtedness of the Borrower is in compliance with and its Subsidiaries; provided that the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01principal amount of all such Indebtedness shall not exceed $25,000,000 at any one time outstanding; and
(hy) Guarantees with respect other unsecured Indebtedness of the Borrower and its Subsidiaries; provided that the principal amount of all such Indebtedness shall not exceed $50,000,000 (less the amount of New Term Loans incurred pursuant to Indebtedness permitted under this Section 8.032.11).
Appears in 1 contract
Samples: Term Loan Credit Agreement (Postmedia Network Canada Corp.)
Indebtedness. CreateThe Borrowers will not, incurnor will they permit any Subsidiary to, assume create, incur or suffer to exist any Indebtedness, except:
(ai) Indebtedness under The Loans and the Loan DocumentsReimbursement Obligations;
(ii) Indebtedness (including Contingent Obligations) existing on the date hereof and described in the Disclosure Schedule;
(iii) Indebtedness arising under Financial Contracts permitted by Section 7.9;
(iv) Contingent Obligations permitted by Section 7.8;
(v) non-recourse Indebtedness in a restricted or special purpose Subsidiary (for which consent of the Required Lenders must be obtained) and as to which none of the Credit Parties (i) provides any guaranty or credit support of any kind (including any undertaking, guarantee, indemnity, agreement or instrument that would constitute Indebtedness) or (ii) is directly or indirectly liable (as a guarantor or otherwise); provided, that after giving effect to such Indebtedness outstanding from time to time, the Credit Parties are not in violation of any of the financial covenants of Article 8;
(vi) normal and ordinary course trade Indebtedness and customary obligations relating to the operation of oil and gas producing properties, drilling rigs and gathering and processing systems and midstream asset operations which are not greater than 90 days past invoice or delinquent or which are being contested in good faith by appropriate action and for which adequate reserves have been maintained in accordance with GAAP;
(vii) unsecured senior indebtedness not in excess of $20,000,000 in total;
(viii) lease obligations (including building and office leases and leases for equipment) not in excess of $40,000,000 in total;
(ix) (a) the Existing Subordinated Notes and (b) other subordinated Indebtedness set forth on Schedule 8.03 (and renewals, refinancings and extensions thereof); including subordinated Indebtedness convertible to equity) provided that (i) the aggregate principal amount of all such existing and other future subordinated Indebtedness is outstanding at any time shall not increased exceed $600,000,000; (ii) at the time of incurring such refinancingsubordinated Indebtedness (A) no Default, renewal Event of Default or extension except by an amount equal to a reasonable premium or other reasonable amount paid, Deficiency has occurred and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder is then continuing and (iiB) no Default, Event of Default or Deficiency would result from the incurrence of any such subordinated Indebtedness after giving effect to the incurrence of such Indebtedness (and any concurrent repayment of Indebtedness with the proceeds of such incurrence), (iii) no subordinated Indebtedness has any scheduled amortization prior to six (6) months after the Facility Termination Date; (iv) no subordinated Indebtedness matures sooner than six (6) months after the Facility Termination Date; (v) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms of all such subordinated Indebtedness are not generally more restrictive, taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended this Agreement and the interest rate applicable to other Loan Documents or the Existing Subordinated Notes; and (vi) the Borrowing Base is adjusted as contemplated by Section 2.6.8 and the Borrowers make any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rateprepayment required under Section 2.8.2;
(cx) intercompany Indebtedness among usual and customary insurance premiums financed in the Borrower and its Subsidiariesnormal course of business;
(dxi) obligations Indebtedness regarding self-insured liabilities, including retentions under insurance policies;
(contingent or otherwisexii) existing or arising under any Swap Contract, provided that miscellaneous items of unsecured Indebtedness not described in subsections (i) such obligations are through (or werexi) entered into by such Person above which do not in the ordinary course total (taking into account all such Indebtedness of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (iiCredit Parties) such Swap Contract does not contain exceed $40,000,000 at any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) purchase money Indebtedness, subject to the limitations set forth in Section 8.01(i);
(f) Indebtedness existing in or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z);
(g) other Indebtedness as long as after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01one time outstanding; and
(hxiii) Guarantees with respect 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 remaining weighted average life to Indebtedness permitted under this Section 8.03.maturity thereof;
Appears in 1 contract
Samples: Senior Credit Agreement (Unit Corp)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, exceptother than:
(a) Indebtedness under this Agreement and otherwise outstanding on the Loan DocumentsClosing Date as set forth on Schedule 7.01 attached hereto;
(b) Indebtedness set forth on Schedule 8.03 unsecured current liabilities (and renewalsother than liabilities for borrowed money or liabilities evidenced by promissory notes, refinancings and extensions thereof); provided that (ibonds or similar instruments) incurred in the amount ordinary course of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest ratebusiness;
(c) intercompany Indebtedness among of Intermet pursuant to the Borrower Note Purchase Agreement and its Subsidiariessecured by Liens which are pari passu with Liens on such collateral in favor of the Lenders securing the Obligations hereunder and governed by the terms of the Intercreditor Agreement;
(d) obligations (contingent or otherwise) existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person Investments in the ordinary course form of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated intercompany loans permitted by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (iiSections 7.06(a) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting partyhereof;
(e) purchase money Indebtedness, subject Subordinated Debt which is unsecured and approved as to terms and conditions by the limitations set forth in Section 8.01(i)Agent and the Required Lenders;
(f) Indebtedness existing in or relating to real estate of a Person which is acquired by or consolidated with a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or Consolidated Company as long as such Indebtedness is not obtained in connection with its usual operations, subject to the limitations set forth in Section 8.01(z)contemplation of such acquisition;
(g) other purchase money Indebtedness as long as after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in extent secured by a Lien permitted pursuant to Section 8.017.02(f); and
(h) Guarantees additional Indebtedness of Intermet which is pari passu in all material respects with respect the Obligations, without limiting the foregoing, such Indebtedness will not have the benefit of any security or guaranties not benefitting the Obligations and will have representations and warranties, covenants, events of default and conditions to Indebtedness permitted under borrowing which are not more restrictive than the provisions of this Section 8.03Agreement.
Appears in 1 contract
Samples: Credit Agreement (Intermet Corp)
Indebtedness. Create, incur, assume or suffer to exist any IndebtednessIndebtedness of the Borrower’s Subsidiaries, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness set forth outstanding on the date hereof and listed on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate7.02;
(c) intercompany Indebtedness among the Borrower and its Subsidiaries;
(d) obligations (contingent or otherwise) existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” ”; and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(ed) Indebtedness in respect of capital leases and purchase money Indebtedness, subject to obligations for fixed or capital assets within the limitations set forth in Section 8.01(i7.01(i); provided, however, that the aggregate amount of all such Indebtedness at any one time outstanding shall not exceed $50,000,000;
(e) unsecured Indebtedness in an aggregate principal amount not to exceed $35,000,000 at any time outstanding;
(f) Indebtedness existing in or relating to real estate acquired owed by a Loan Party or a any Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z);Borrower or any of its Subsidiaries; and
(g) other Indebtedness as long as after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on not to exceed $126,200,000 at any time for secured letters of credit (including letters of credit issued to secure reinsurance policies issued to, or issued to a Pro Forma Basisreinsurer of, subject to the limitations set forth in Section 8.01; and
(h) Guarantees with respect to Indebtedness permitted under this Section 8.03a Lloyd’s syndicate and letters of credit issued for general corporate insurance purposes).
Appears in 1 contract
Samples: Credit Agreement (Tower Group, Inc.)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness set forth in respect of the Convertible Notes in an aggregate principal amount not to exceed $143,750,000 and Indebtedness listed on Schedule 8.03 (and renewals7.03, refinancings and and, in each case, any refinancings, refundings, renewals or extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest ratethereunder;
(c) intercompany Guarantees of the Company or any Subsidiary in respect of Indebtedness among otherwise permitted hereunder of the Borrower and its SubsidiariesCompany or any wholly-owned Subsidiary;
(d) (i) obligations (contingent or otherwise) of the Company or any Subsidiary existing or arising under any Swap Contract, ; provided that (iA) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” ”; and (iiB) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party; and (ii) the Company may purchase any Bond Hedge and acquire common stock of the Company upon exercise and settlement and/or termination of such Bond Hedge;
(e) Indebtedness in respect of capital leases, Synthetic Lease Obligations and purchase money Indebtedness, subject to obligations for fixed or capital assets within the limitations set forth in Section 8.01(i7.01(c);
(f) Indebtedness existing in with respect to any Investment permitted under Section 7.02(e) or relating to real estate acquired by (o) and unsecured Indebtedness of any Subsidiary that is not a Loan Party owed to any Loan Party or any other Subsidiary that is not a Loan Party; provided that all such Indebtedness of a Subsidiary for transmission, distribution or right-of-way purposes or that is not a Loan Party owed to a Loan Party (other than Indebtedness in connection with its usual operationsInvestments permitted pursuant to Sections 7.02(c), subject (f) and (o)) shall not exceed $25,000,000 outstanding at any time plus the amount of any Indebtedness permitted and available pursuant to the limitations set forth in Section 8.01(z7.03(g)(ii);; and
(g) other Indebtedness as (i) of the Loan Parties and (ii) of Subsidiaries that are not Loan Parties in an aggregate principal amount not to exceed $50,000,000 at any time outstanding, in each case so long as as, both immediately before and immediately after giving pro forma effect thereto to the Borrower is incurrence thereof, (A) the Consolidated Leverage Ratio shall not exceed 2.25:1 or (B) (I) the Company shall have Liquidity of at least $75,000,000 and (II) the Company and its Subsidiaries shall be in pro forma compliance with all of the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations covenants set forth in Section 8.01; and
7.11, such compliance to be determined on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.01(a) or (hb) Guarantees with respect as though such Indebtedness had been incurred as of the first day of the fiscal period covered thereby. The maximum amount of Indebtedness that the Company or any Subsidiary may incur pursuant to Indebtedness permitted under this Section 8.037.03 shall not be deemed to be exceeded solely as the result of fluctuations in the exchange rates of currencies and the amount of any Indebtedness denominated in a currency other than Dollars shall be calculated by converting such Indebtedness to Dollars at the exchange rate prevailing at the time such Indebtedness is incurred.
Appears in 1 contract
Indebtedness. (a) Create, incur, assume or suffer permit to exist any Financial Indebtedness, exceptor agree, become or remain liable (contingent or otherwise) to do any of the foregoing, except for:
(ai) Financial Indebtedness under the Loan Documentsof any Borrower pursuant to any Finance Document;
(bii) Financial Indebtedness set forth of any member of the Group to any other member of the Group;
(iii) Guarantee Obligations by any member of the Group of obligations of any other member of the Group;
(iv) Financial Indebtedness outstanding on the date hereof and listed in Schedule 8.03 6 (Financial Indebtedness) and renewalsany refinancings, refinancings and refundings, renewals or extensions thereof (without increasing, or shortening the maturity of, the principal amount thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if anyunutilised thereunder), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;
(cv) intercompany Financial Indebtedness among (including, without limitation, Capital Lease Obligations) incurred in the Borrower ordinary course of business and its Subsidiariessecured by Security permitted by Clause 17.5(h) in an aggregate principal amount not to exceed $25,000,000 at any one time outstanding;
(dvi) obligations (contingent or otherwise) existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business Subsidiary for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, assets or property held or reasonably anticipated by such PersonSubsidiary, or changes in the value of securities issued by such PersonSubsidiary, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party”;
(evii) purchase money IndebtednessFinancial Indebtedness for letters of credit, subject bank guaranties and similar instruments which have been issued on behalf of any Insurance Subsidiary to or for the limitations set forth benefit of reinsurance cedents or insurance clients in Section 8.01(i)the ordinary course of business;
(fviii) Financial Indebtedness existing of any Subsidiary incurred under securities lending arrangements entered into in or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or the ordinary course of business;
(ix) Financial Indebtedness incurred in the ordinary course of business in connection with its usual operationsworkers’ compensation claims, subject self-insurance obligations, unemployment insurance or other forms of governmental insurance or benefits pursuant to the limitations set forth letters of credit or other security arrangements entered into in Section 8.01(z)connection with such insurance or benefit;
(gx) other Indebtedness as long as after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth extent constituting Financial Indebtedness, any Financial Indebtedness pursuant to overdraft facilities in Section 8.01the ordinary course of business and consistent with past practice in an aggregate principal amount not to exceed $25,000,000 at the close of business on any day, provided that any Financial Indebtedness under such overdraft facilities shall not remain outstanding for longer than five consecutive Business Days; and
(hxi) Guarantees with respect Financial Indebtedness for letters of credit which have been, or may from time to time in the future be, issued to provide funds at Lloyd’s to support Lloyd’s syndicate commitments of the Borrowers and their Subsidiaries or provided in lieu of required capital of Insurance Subsidiaries; provided that such letters of credit are fully collateralized; and
(xii) so long as no Default or Event of Default shall have occurred and be continuing or would result there from, additional Financial Indebtedness incurred in the ordinary course of business not otherwise permitted under this Section 8.03Clause 17.1(a) in an aggregate principal amount (for all Borrowers and their Subsidiaries) not to exceed 5% of Consolidated Tangible Net Worth at the time of creation, incurrence or assumption, as the case may be.
Appears in 1 contract
Samples: Multicurrency Letter of Credit Facility Agreement (Aspen Insurance Holdings LTD)
Indebtedness. CreateBe indebted for any Indebtedness (including as a surety, incurguarantor, assume accommodation party or suffer to exist otherwise for or upon the obligation of any Indebtednessother Person), except:
(a) Indebtedness under incurred for the Loan Documentsacquisition of supplies or inventory on normal trade credit;
(b) Indebtedness set forth on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal incurred pursuant to one or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest ratemore transactions permitted under Section 6.4;
(c) intercompany Indebtedness among the of Borrower and its Subsidiariesunder this Agreement;
(d) obligations (contingent or otherwise) existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting partySubordinated Debt;
(e) purchase money Indebtedness, subject any Indebtedness approved by Lender prior to the limitations set forth in Section 8.01(i)Closing Date as shown on Schedule 6.1;
(f) Indebtedness existing in or relating of Borrower to real estate acquired by a Loan Party or a Subsidiary for transmissionits investors that is convertible into Borrower’s equity securities where each investor’s right to repayment of such Indebtedness, distribution or right-of-way purposes or in connection with its usual operationsthe priority of any Liens securing the same, subject and the rights of such investor to enforce remedies against Borrower following default have been made subordinate to the limitations set forth Liens of Lender and to the prior payment of the Obligations, either (i) pursuant to a written subordination agreement approved by Lender in Section 8.01(z)its sole but reasonable discretion or (ii) on terms otherwise approved by Lender in its sole but reasonable discretion;
(g) other Indebtedness as long as after giving effect thereto secured by a Lien otherwise permitted by subsection (c) of the Borrower is definition of Permitted Liens, which when added to obligations permitted under Section 6.15 hereof, does not exceed $100,000 in compliance with aggregate debt service, lease or similar installment payments coming due in the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01rolling 12-month period succeeding any date of determination; and
(h) Guarantees with respect additional Indebtedness in an aggregate outstanding amount at any time not to exceed $100,000. For the avoidance of doubt, any Indebtedness of Borrower not permitted under this Section 8.03pursuant to clauses (a) through (h) above shall be permitted only upon Xxxxxx’s prior written approval, which shall not be unreasonably withheld, and, if requested by Xxxxxx, shall be fully subordinated in terms of both principal payments and security interest.
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Attributable Indebtedness set forth on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, Synthetic Lease Obligations created in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, sale-leaseback of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries Oklahoma Properties or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rateElectrical Assets;
(c) intercompany Indebtedness among outstanding on the Borrower date hereof and its Subsidiarieslisted on Schedule 7.03 and any Permitted Refinancing thereof;
(d) Guarantees of the Borrower or any Guarantor in respect of Indebtedness otherwise permitted hereunder of the Borrower or any Guarantor;
(e) obligations (contingent or otherwise) of the Borrower or any Restricted Subsidiary existing or arising under any Swap Contract, ; provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
party (e) purchase money Indebtedness, subject to the limitations set forth in Section 8.01(iother than customary netting arrangements);
(f) Indebtedness existing in respect of Capital Leases, Synthetic Lease Obligations and purchase money obligations for fixed or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to capital assets within the limitations set forth in Section 8.01(z7.01(q); provided, however, that the aggregate principal amount of all such Indebtedness incurred pursuant to this clause (f) at any one time outstanding shall not exceed $25,000,000;
(g) Indebtedness of the Borrower or a Restricted Subsidiary owing to the Borrower or a wholly-owned Restricted Subsidiary; provided that in the case of any such Indebtedness owing from a Loan Party to a non-Loan Party, (x) the Borrower shall be in compliance with the Available Amount Conditions at the time such Indebtedness is issued or incurred and (y) the amount of such Indebtedness shall not, in the aggregate, exceed the Available Amount at such time;
(h) [reserved];
(i) Indebtedness related to any sale-leaseback transaction with respect to the Oklahoma Properties;
(j) other Indebtedness as long as in an aggregate principal amount not to exceed $5,000,000 at any time outstanding;
(k) Indebtedness in respect of surety bonds obtained by the Borrower or a Restricted Subsidiary in the ordinary course of business and supporting other obligations undertaken by the Borrower or a Restricted Subsidiary in the ordinary course of business which other obligations do not constitute Indebtedness;
(l) Indebtedness that constitutes Junior Lien Debt and unsecured Indebtedness not otherwise permitted by this Section 7.03 in an aggregate principal amount for all Indebtedness under this clause (l) not to exceed $500,000,000 at any time outstanding; provided that (1) no Default or Event of Default or Borrowing Base Deficiency has occurred and is then continuing or would result therefrom, (2) after giving effect thereto to the incurrence of such Indebtedness, the Borrower shall be in compliance, on a pro forma basis with the Financial Covenants contained in Section 7.11, (3) the Borrowing Base shall be adjusted as set forth in Section 2.05(c), (4) such Indebtedness does not mature and requires no scheduled Amortization prior to the 91st day following the Maturity Date, (5) the terms of such Indebtedness are not materially more onerous, taken as a whole, than the terms of this Agreement and the other Loan Documents, (6) if any Person Guarantees such Indebtedness, such Person shall also Guarantee the Obligations by providing a guaranty or guaranty supplement, in form and substance reasonably satisfactory to the Administrative Agent and (7) such Indebtedness and any guarantees and Liens in respect thereof are otherwise on terms and conditions reasonably acceptable to the Administrative Agent;
(m) Indebtedness of any Person at the time such Person becomes a Restricted Subsidiary of the Borrower, or is merged or consolidated with or into the Borrower or any of its Restricted Subsidiaries, in a transaction permitted by this Agreement, and extensions, renewals, refinancings, refundings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than any increase not exceeding the amount of any fees, premium, if any, and financing costs relating to such refinancing); provided that (i) such Indebtedness (other than any such extension, renewal, refinancing, refunding or replacement) exists at the time such Person becomes a Restricted Subsidiary and is not created in contemplation of such event, (ii) other than Guarantee obligations permitted by clause (d) of this Section 7.03, neither the Borrower nor any of its other Restricted Subsidiaries shall be liable for such Indebtedness and (iii) the Borrower is in compliance compliance, on a pro forma basis after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, with the financial covenant Financial Covenants contained in Section 8.11 7.11;
(n) Indebtedness of the Borrower or any Restricted Subsidiary to the seller representing all or part of the purchase price of an Investment or acquisition permitted hereunder, or assumed by the Borrower or any of its Restricted Subsidiaries in connection therewith, and extensions, renewals, refinancings, refundings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than any increase not exceeding the amount of any fees, premium, if any, and financing costs relating to such refinancing); provided that (i) as to any such assumed Indebtedness, such Indebtedness (other than any extension, renewal, refinancing, refunding or replacement thereof) exists at the time of such acquisition and is not created in contemplation of such event and (ii) the Borrower is in compliance, on a Pro Forma Basis, subject pro forma basis after giving effect to the limitations set forth assumption of such Indebtedness, with the covenants contained in Section 8.017.11;
(o) Indebtedness arising from judgments or orders in circumstances not constituting an Event of Default under Section 8.01(h);
(p) Indebtedness in respect of the Convertible Notes issued on the Closing Date in an aggregate principal amount not to exceed the sum of (x) $300,000,000 plus (y) any interest that is paid-in-kind and otherwise added to the outstanding principal amount of such Indebtedness and any interest that is accrued and unpaid in respect of such Indebtedness; provided that such $300,000,000 amount in clause (x) above shall increase in connection with any “make-whole event” or “Corporate Event” such that each $1.00 in outstanding principal amount shall be increased by $0.783478 to equal $1.783487, as described in the definitive documentation governing such Convertible Notes as in effect on the Closing Date;
(q) Indebtedness arising from or representing deferred compensation to employees of the Borrower or its Restricted Subsidiaries that constitute or are deemed to be Indebtedness under GAAP and that are incurred in the ordinary course of business;
(r) Indebtedness arising pursuant to clause (e) of the definition thereof as a result of Liens permitted under Sections 7.01(c), (d), (e), (f) and (j); and
(hs) Guarantees with respect to Indebtedness permitted obligations of the Borrower or any Restricted Subsidiary existing or arising under this Section 8.03any Treasury Management Services Agreement.
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist any IndebtednessIndebtedness or obligations under Operating Leases, except:
(a) Indebtedness under the Loan Documents;
Indebtedness, other than that permitted by subsections (b) Indebtedness set forth through (h) below, outstanding on the Closing Date and listed on Schedule 8.03 (and renewalsany refinancings, refinancings and refundings, renewals or extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by plus an amount equal to any existing commitments unutilized thereunder and thereunder;
(iib) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to Indebtedness under the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rateDocuments;
(c) intercompany Indebtedness among Guaranty Obligations of the Borrower and its Subsidiariesor any Guarantor in respect of Indebtedness otherwise permitted hereunder of the Borrower or any other Guarantor;
(d) obligations (contingent or otherwise) of the Borrower or any Subsidiary existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) purchase money Indebtednessobligations under Operating Leases, subject to provided immediately before and immediately after the limitations set forth in Section 8.01(i)incurrence of any such obligations, no Default exists or would result therefrom;
(fi) Indebtedness in respect of Capital Leases existing on the Closing Date and (ii) Indebtedness in respect of Capital Leases assumed by the Borrower or relating any Subsidiary pursuant to real estate acquired an Acquisition of a franchisee business permitted by a Loan Party or a Subsidiary Section 8.02(f), provided that the total of all such assumed Indebtedness for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z)all such Persons taken together shall not exceed an aggregate principal amount of $100,000,000 at any one time outstanding;
(g) other purchase money Indebtedness as long as after giving effect thereto (including obligations in respect of Capital Leases) of the Borrower is or any of its Subsidiaries hereafter incurred by the Borrower or any of its Subsidiaries to finance the purchase of fixed or capital assets, and renewals, refinancings and extensions thereof, provided that (i) the total of all such Indebtedness for all such Persons taken together shall not exceed an aggregate principal amount of $5,000,000 at any one time outstanding; (ii) such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed; and (iii) no such Indebtedness shall be refinanced for a principal amount in compliance with excess of the financial covenant principal balance outstanding thereon at the time of such refinancing;
(h) other unsecured Indebtedness in Section 8.11 on a Pro Forma Basis, subject an aggregate principal amount at any time outstanding not to the limitations set forth in Section 8.01exceed $25,000,000; and
(hi) Guarantees with respect other Guaranty Obligations of the Borrower or any Subsidiary not to Indebtedness permitted under this Section 8.03exceed $15,000,000 in aggregate amount at any time.
Appears in 1 contract
Samples: Credit Agreement (Sonic Corp)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any IndebtednessIndebtedness of the Borrower or its Subsidiaries, howsoever evidenced, except:
(a) Indebtedness under existing as of the Loan DocumentsClosing Date and as set forth in Schedule 8.6;
(b) Indebtedness owing to the Agent or any Lender in connection with this Agreement, any Note or other Loan Document;
(c) the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(d) in the case of Mid-State and each MSH Trust, where applicable,
(i) non-recourse Indebtedness evidenced by the Mortgage- Backed Securities,
(ii) limited recourse Indebtedness created under the Mortgage Warehousing Facility, and
(iii) limited recourse Indebtedness resulting from the issuance of additional securities by one or more special purpose entities owned by Mid-State or in which Mid-State shall have the sole residual or beneficial interest, secured or otherwise supported by Mortgage Accounts, which securities shall not restrict the actions or businesses of any Borrower or any of its Subsidiaries (other than Mid-State) in any manner and shall not include terms requiring any guarantee or other credit support from or recourse to the Borrower or any of its Restricted Subsidiaries that are less favorable to the Borrower and its Restricted Subsidiaries than those contained in the Mortgage-Backed Securities; and
(e) in the case of Xxx Xxxxxx Homes,
(A) Indebtedness resulting from the contingent obligations of Xxx Xxxxxx Homes
(1) to repurchase Mortgage Accounts pursuant to Section 3(b) of the Depositor Account Transfer Agreement, (2) to repurchase Foreclosure Accounts (as defined in the Depositor Account Transfer Agreement) pursuant to the terms of Section 4 of the Depositor Account Transfer Agreement and (3) to indemnify certain Indemnitees referred to in the Depositor Account Transfer Agreement for expenses incurred thereby on the terms set forth on Schedule 8.03 (and renewals, refinancings and extensions thereof)in Section 6 of the Depositor Account Transfer Agreement; provided that the amount of Indebtedness incurred under subclauses (e)(A)(1) and (e)(A)(3) shall not exceed $10,000,000 at any time, and (B) Indebtedness owed to Mid-State resulting from the receipt of proceeds from the issuance and sale of the Mortgage-Backed Securities or additional securities otherwise permitted under subclauses (d)(i) and (d)(iii) of this Section 10.4;
(f) Indebtedness between the Borrower and its Subsidiaries and Indebtedness between Subsidiaries;
(g) purchase money Indebtedness secured by Liens described in Section 10.3(i) not to exceed an aggregate outstanding amount at any time of $60,000,000;
(h) Subordinated Payables;
(i) the amount of Indebtedness arising in connection with Permitted Receivables Securitizations not to exceed $75,000,000 at any time;
(j) Indebtedness arising from Rate Hedging Obligations (provided that such Indebtedness is not increased at incurred to limit risks of currency or interest rate fluctuations to which the time Borrower and its Subsidiaries are otherwise subject by virtue of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paidthe operations of their businesses, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and not for speculative purposes):
(i) of Unrestricted Subsidiaries; and
(ii) of the Borrower and its Restricted Subsidiaries in aggregate notional amount not to exceed $450,000,000 at any time;
(k) Capital Leases in aggregate principal amount not at any time exceeding $20,000,000 in the aggregate;
(l) additional Indebtedness for Money Borrowed of the Borrower or its Subsidiaries not otherwise covered by clauses (a) through (k) above, provided that the aggregate outstanding principal amount of all such other Indebtedness permitted under this clause (l) shall in no event exceed $30,000,000 at any time;
(m) Indebtedness extending the maturity of, or refunding or refinancing, in whole or in part, any Indebtedness incurred under clauses (a), (f), (g), (k) and (l) of this Section 10.4, provided, however, that the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancingextension, renewal refunding or extension refinancing Indebtedness (and of any agreement entered into and of any instrument issued in connection therewith) are no less favorable in any material respect to the Loan Parties Agent and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinancedso extended, renewed refunded or extended refinanced and are otherwise expressly permitted under the interest rate applicable terms of the Loan Documents, and provided further, however, that (1) the aggregate principal amount of such extended, refunding or refinancing Indebtedness shall not be increased above the outstanding principal amount thereof immediately prior to such extension, refunding or refinancing, (2) the direct and contingent obligors therefor shall not be changed as a result of or in connection with such extension, refunding or refinancing and (3) immediately before and immediately after giving effect to any such extension, refunding or refinancing, refundingno Default shall have occurred and be continuing;
(n) loans to a Credit Party against and secured by the cash surrender value of life insurance policies owned by such Credit Party, renewing or extending Indebtedness provided that the aggregate principal amount of such loan does not exceed the then applicable market interest ratecash surrender value of the policy constituting security therefor;
(co) intercompany Indebtedness among the Borrower and its Subsidiaries;
(d) obligations (contingent or otherwise) existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course Guaranties of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) purchase money Indebtedness, subject to the limitations set forth in Section 8.01(i);
(f) Indebtedness existing in or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z);
(g) other Indebtedness as long as after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01; and
(h) Guarantees with respect to Indebtedness permitted under this Section 8.0310.4; and
(p) surety bonds permitted under Section 10.3.
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(ai) Indebtedness under the Loan Documents;
(bii) Indebtedness existing as of the Seventh Amendment Effective Date and set forth on in Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) the amount any Permitted Refinancings of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rateIndebtedness;
(ciii) intercompany Indebtedness among the Borrower and its Subsidiariespermitted under Section 8.02;
(div) obligations (contingent or otherwise) existing or arising under any Swap Contract; provided, provided that (i) that, such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” ”
(v) purchase money Indebtedness (including obligations in respect of Capital Leases or Synthetic Leases) incurred to finance the purchase, construction or improvement of fixed assets, and renewals, refinancings and extensions thereof; provided, that, (i) the aggregate outstanding principal amount of all such Indebtedness shall not exceed $25,000,000 at any one time outstanding; and (ii) such Swap Contract does Indebtedness when incurred shall not contain any provision exonerating exceed the non-defaulting party from its obligation to make payments on outstanding transactions to purchase price of the defaulting partyasset(s) financed; and Permitted Refinancings of such Indebtedness;
(evi) purchase money IndebtednessPermitted Facilities, subject including any amendments to such Permitted Facilities to increase the limitations amount of such facilities; provided, that, at the time of entering into any Permitted Facility or any amendment that increases the amount of such facilities (i) no Default has occurred and is continuing and (ii) after giving effect to such Permitted Facility on a Pro Forma Basis (assuming full utilization of such Permitted Facility), the Borrower would be in compliance with the Financial Covenant set forth in Section 8.01(i8.11(b); and Permitted Refinancings of such Indebtedness;
(fvii) Indebtedness existing in or relating to real estate acquired by a Loan Party or of any Person that becomes a Subsidiary for transmissionafter the Closing Date as a result of a Permitted Acquisition or the GCAP Acquisition, distribution or right-of-way purposes otherwise assumed in connection with a Permitted Acquisition or the GCAP Acquisition; provided, that, such Indebtedness (and any Guarantees thereof) exists at the time of such Permitted Acquisition or the GCAP Acquisition, as applicable, and is not created in contemplation of or in connection with its usual operationssuch Permitted Acquisition or the GCAP Acquisition, subject to the limitations set forth in Section 8.01(z)as applicable and Permitted Refinancings of such Indebtedness;
(gviii) other Indebtedness as long as after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject an aggregate principal amount not to the limitations set forth in Section 8.01; andexceed $15,000,000 at any one time outstanding;
(hix) Guarantees with respect to Indebtedness permitted under this Section 8.038.03 and Guarantees provided by the Borrower or any of its Subsidiaries of obligations incurred by any Subsidiary of the Borrower to counterparties in the ordinary course of its trading and market making business;
(x) Indebtedness arising from agreements for indemnification, purchase price adjustment obligations and earn-outs or other similar obligations, in each case incurred in connection with any Permitted Acquisition;
(xi) unsecured Indebtedness of the Borrower under unsecured convertible notes, retail notes and other senior or subordinated unsecured notes, in an aggregate principal amount not to exceed $300,000,000; provided, that, in each case, (i) at the time of incurrence of such Indebtedness, no Default has occurred and is continuing, (ii) such notes shall not mature at any time on or prior to the date that is ninety-one (91) days after the then-Latest Maturity Date (and the terms of such Indebtedness shall not provide for any scheduled repayment, mandatory redemption, mandatory conversion (except for a conversion into common equity of the Borrower) or sinking fund obligations at any time on or prior to the date that is ninety-one (91) days after the then-Latest Maturity Date), (iii) such notes shall not include any financial covenants that are more restrictive in any respect on the Borrower than the Financial Covenants, and (iv) if such Indebtedness is subordinated in right of payment to the Obligations, it shall be subject to a Subordination Agreement;
(xii) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, that, such Indebtedness is extinguished within five (5) Business Days of receiving notice thereof;
(xiii) Indebtedness with respect to performance bonds, surety bonds or appeal bonds required in the ordinary course of business or in connection with the enforcement of rights or claims of Borrower or any of its Subsidiaries or in connection with judgments that do not result in an Event of Default; provided, that, the aggregate outstanding amount of all such performance bonds and surety bonds permitted by this clause (m) shall not at any time exceed $10,000,000;
(xiv) short-term commodities financings of StoneX Financial in an aggregate amount not to exceed $150,000,000 at any time outstanding;
(xv) intraday financings of StoneX Financial with respect to Permitted Repos in an aggregate amount not to exceed $25,000,000;
(xvi) Indebtedness outstanding under the Second Lien Debt Documents; and
(xvii) Indebtedness in an amount not to exceed $550,000,000 to refinance the Second Lien Debt and for other working capital purposes, which shall consist of one or more series of secured or unsecured bonds, debentures, notes or similar instruments, or term loans, in each case, on terms and conditions as agreed between the Borrower and the lenders providing any such indebtedness; provided, that, (i) to the extent the net proceeds from such Indebtedness exceed the amounts required to refinance the Second Lien Debt, such net proceeds shall first be utilized to repay amounts then outstanding under this Agreement and then utilized for other working capital purposes, including, without limitation, to repay other Indebtedness and to make Permitted Acquisitions, (ii) maturity date of such Indebtedness may not be earlier than the Latest Maturity Date under this Agreement, (iii) the Weighted Average Life to Maturity of such Indebtedness may not be shorter than the remaining Weighted Average Life to Maturity of any then-existing term loans under this Agreement, (iv) if such Indebtedness is secured, (A) such Indebtedness shall be secured by the Collateral on a pari passu basis or a junior basis, and shall not be secured by any property or assets not securing this Agreement (giving effect to any security interest in property or assets that are substantially concurrently provided for the benefit of the holders of the obligations under this Agreement) and (B) to the extent such Indebtedness is not incurred under this Agreement, the holders of such Indebtedness (or trustee or other agent under the agreement pursuant to which such Indebtedness is issued) shall have executed and delivered an intercreditor agreement in form and substance reasonably satisfactory to the Administrative Agent (provided, that, in the case of any Indebtedness secured on a junior basis, the terms of the existing Intercreditor Agreement for the Second Lien Debt shall be deemed to be reasonable), (v) there shall be no obligors with respect to such Indebtedness that are not also obligors under this Agreement (giving effect to any obligors that are substantially concurrently joined as obligors under this Agreement) and (vi) such Indebtedness shall contain covenants, events of default, payment and other terms that are customary for similar Indebtedness in light of then-prevailing market conditions and, when taken as a whole, that are not materially more restrictive to the Borrower and its Subsidiaries than, those set forth in the Loan Documents (other than (A) covenants or other provisions applicable only to periods after the Latest Maturity Date, and (B) covenants or other provisions that are added to the Loan Documents for the benefit of the Lenders).
Appears in 1 contract
Samples: Credit Agreement (StoneX Group Inc.)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Note Documents;
(b) Indebtedness set forth of Parent and its Subsidiaries existing on the Closing Date and described on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rateDisclosure Letter;
(c) (i) intercompany Indebtedness among the Borrower permitted under Section 8.02, (ii) intercompany Indebtedness between Note Parties, (iii) intercompany Indebtedness between Subsidiaries that are not Note Parties and its Subsidiaries(iv) intercompany Indebtedness owed by Subsidiaries that are not Note Parties to Note Parties in an amount not to exceed $10,000,000 at any time outstanding;
(d) obligations (contingent or otherwise) of Parent or any Subsidiary existing or arising under any Swap Contract, provided that (i) provided, that, such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party”;
(e) (x) purchase money IndebtednessIndebtedness (including obligations in respect of Capital Leases or Synthetic Leases) hereafter incurred by Parent or any of its Subsidiaries to finance the purchase of fixed assets, subject and renewals, refinancings and extensions thereof, provided, that, (i) the total of all such Indebtedness incurred in reliance on this clause (x) for all such Persons taken together, together with the total of all Indebtedness assumed by Parent and its Subsidiaries in reliance on clause (y) of this Section 8.03(e), shall not exceed an aggregate principal amount of $10,000,000 at any time outstanding, (ii) such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed, and (iii) no such Indebtedness shall be refinanced for a principal amount in excess of the principal balance outstanding thereon at the time of such refinancing (other than by an amount equal to unpaid interest and premium thereon, and any underwriting discounts, fees, commissions and expenses associated with such refinancing); and (y) purchase money Indebtedness (including obligations in respect of Capital Leases or Synthetic Leases) assumed in connection with a Permitted Acquisition or other Investment permitted by Section 8.02, that was incurred to finance the limitations set forth purchase of fixed assets, and renewals, refinancings and extensions thereof; provided, that, (i) the total of all such Indebtedness assumed in reliance on this clause (y) for all such Persons taken together, together with the total of all Indebtedness incurred by Parent and its Subsidiaries in reliance on clause (x) of this Section 8.01(i8.03(e), shall not exceed an aggregate principal amount of $10,000,000 at any time outstanding, (ii) no such Indebtedness shall be refinanced for a principal amount in excess of the principal balance outstanding thereon at the time of such refinancing (other than by an amount equal to unpaid interest and premium thereon, and any underwriting discounts, fees, commissions and expenses associated with such refinancing), and (iii) such Indebtedness shall not have been incurred in contemplation of or in connection with such Permitted Acquisition or other Investment;
(f) Indebtedness existing in or respect of obligations relating to real estate acquired by a Loan Party corporate credit cards, purchase cards or a Subsidiary for transmissionbank card products, distribution or right-of-way purposes or not to exceed $2,000,000 in connection with its usual operations, subject to the limitations set forth in Section 8.01(z)aggregate at any one time outstanding;
(g) other Guarantees of Indebtedness as long as after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01; and
(h) Guarantees with respect to Indebtedness otherwise permitted under this Section 8.03;
(h) Indebtedness with respect to outstanding letters of credit, banker’s acceptances or similar instruments posted in the ordinary course of business, provided, the outstanding principal amount of such Indebtedness shall not exceed $6,250,000 in the aggregate at any time;
(i) Indebtedness in respect of any agreement providing for treasury, depositary, or cash management services, including in connection with any automated clearing house transfers of funds or any similar transactions, securities settlements, foreign exchange contracts, assumed settlement, netting services, overdraft protections and other cash management, intercompany cash pooling and similar arrangements, in each case in the ordinary course of business;
(j) advances or deposits in the ordinary course of business from customers, vendors or partners and not constituting Indebtedness for borrowed money;
(k) workers’ compensation claims, payment obligations in connection with health, disability or other types of social security benefits, unemployment or other insurance obligations, reclamation and statutory obligations, in each case incurred in the ordinary course of Parent’s or its Subsidiaries’ business;
(l) Indebtedness and related guarantees incurred solely as a result of endorsing negotiable instruments in the ordinary course of business;
(m) Indebtedness constituting Earn Out Obligations or obligations in respect of working capital adjustment requirements under the agreements used to consummate a Permitted Acquisition or other Investment permitted under Section 8.02;
(n) other unsecured Indebtedness in an aggregate amount not to exceed $2,000,000 at any one time outstanding;
(o) Indebtedness in respect of (i) surety and appeal bonds, performance bonds, bid bonds, appeal bonds, completion guarantees and similar obligations incurred in the ordinary course of business and (ii) customary indemnification obligations to purchasers in connection with Dispositions permitted by Section 8.05;
(p) Indebtedness owed to any Person in respect of the purchase price for property, casualty, liability, or other insurance to any Note Party or to any of their Subsidiaries, or to a premium finance company with respect only to such insurance premiums;
(q) Permitted Convertible Bond Indebtedness; provided, that the aggregate principal amount of Indebtedness incurred pursuant to this clause (q) (i) shall not exceed, when multiplied by the per annum cash interest rate applicable to such Indebtedness, $6,750,000 at any time outstanding and (ii) shall not exceed at the time such Indebtedness is incurred an amount equal to Consolidated Net Sales for the trailing twelve-month period ended immediately prior to the date such Indebtedness is incurred multiplied by a factor of 3; and
(r) Indebtedness of Parent or any other Note Party in the form of a working capital or revolving credit facility with a maximum credit line of no more than the lesser of (x) 20% of Consolidated Net Sales for the trailing twelve-month period ended immediately prior to the closing date of such facility and (y) $50,000,000 (the “Revolving Credit Facility”); provided, that that as of the closing date of such Revolving Credit Facility, Consolidated Net Sales, for the trailing twelve-month period ended immediately prior to such date, are equal to or exceed $75,000,000; provided, further, that such Indebtedness may be secured on a first priority basis by Liens on any Collateral constituting accounts receivable, inventory, cash, and any Deposit Account established and maintained with the lender under such Revolving Credit Facility to hold such cash, supporting obligations and all proceeds of the foregoing and, in the sole discretion of the Collateral Agent, other assets over which an asset-based revolving lender would customarily have a first priority Lien to secure the obligations under such facility, to secure the obligations under such Revolving Credit Facility (collectively, the “Revolving Credit Priority Collateral”), and such Liens may be senior in rank, order of priority and enforcement to the security interests and Liens of the Collateral Agent (in favor and for the benefit of the Purchasers and the other Secured Parties) in the Revolving Credit Priority Collateral to secure the Obligations pursuant to an intercreditor, subordination or other similar agreement among such Note Party, the holder (or agent or representative of the holders) of such Indebtedness and the Collateral Agent, in form and substance reasonably satisfactory to each of such holder, agent or representative and the Collateral Agent (the “Intercreditor Agreement”); provided, finally, that no Subsidiary shall Guarantee, or provide a Lien to secure, the obligations under such Revolving Credit Facility if such Subsidiary is not a Guarantor (and does not pledge its assets in support thereof) in accordance with the terms of the Note Documents.
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness set forth outstanding on the date hereof and listed on Schedule 8.03 (7.03 and renewalsany refinancings, refinancings and refundings, renewals or extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest ratethereunder;
(c) intercompany Guarantees of the Company or any Subsidiary in respect of Indebtedness among otherwise permitted hereunder of the Borrower and its SubsidiariesCompany or any wholly-owned Subsidiary;
(d) obligations (contingent or otherwise) of the Company or any Subsidiary existing or arising under any Swap Contract, ; provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) Indebtedness in respect of capital leases, Synthetic Lease Obligations and purchase money Indebtedness, subject to obligations for fixed or capital assets within the limitations set forth in Section 8.01(i7.01(d);
(f) Indebtedness existing in or relating with respect to real estate acquired by any Investment permitted under Section 7.02(o) and unsecured Indebtedness of any Subsidiary that is not a Loan Party owed to any Loan Party or any other Subsidiary that is not a Loan Party; provided that all such Indebtedness of a Subsidiary for transmission, distribution or right-of-way purposes or that is not a Loan Party owed to a Loan Party (other than Indebtedness in connection with its usual operationsInvestments permitted pursuant to Sections 7.02(c), subject (f) and (o)) shall not exceed $50,000,000 outstanding at any time plus the amount of any Indebtedness permitted and available pursuant to the limitations set forth in Section 8.01(z7.03(g)(ii);; and
(g) other Indebtedness as long as after giving effect thereto (i) of the Borrower is Loan Parties without limit and (ii) of Subsidiaries that are not Loan Parties in compliance with an aggregate principal amount not to exceed $100,000,000 at any time outstanding. The maximum amount of Indebtedness that the financial covenant in Section 8.11 on a Pro Forma Basis, subject Company or any Subsidiary may incur pursuant to the limitations set forth in Section 8.01; and
(h) Guarantees with respect to Indebtedness permitted under this Section 8.037.03 shall not be deemed to be exceeded solely as the result of fluctuations in the exchange rates of currencies and the amount of any Indebtedness denominated in a currency other than Dollars shall be calculated by converting such Indebtedness to Dollars at the exchange rate prevailing at the time such Indebtedness is incurred.
Appears in 1 contract
Indebtedness. CreateThe Company shall not, and shall not permit any Subsidiary to, create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness set forth outstanding on the date hereof and listed on Schedule 8.03 (7.03 and renewals, refinancings and extensions any Refinancing Indebtedness in respect thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;
(c) intercompany Guarantees of the Company or any Subsidiary in respect of Indebtedness among the Borrower and its Subsidiariesotherwise permitted hereunder;
(d) obligations (contingent or otherwise) of the Company or any Subsidiary existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting non‑defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) unsecured intercompany Indebtedness owed by the Company or any Subsidiary to (i) the Company, (ii) any other Loan Party or (iii) any Subsidiary that is not a Loan Party; provided if Indebtedness arising under clause (iii) is owing by a Loan Party, it is subordinated to the Obligations in a manner reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of capital leases, Synthetic Lease Obligations and purchase money Indebtedness, subject to obligations for fixed or capital assets within the limitations set forth in Section 8.01(i);
7.01(f) and Refinancing Indebtedness in respect of such Indebtedness; provided that (fi) at the time of incurrence thereof, no Default has occurred and is continuing or would result from the incurrence of such Indebtedness existing in or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject immediately following the incurrence of such Indebtedness; and (ii) immediately before and immediately after giving pro forma effect to the limitations set forth incurrence of such Indebtedness the Company and its Subsidiaries shall be in Section 8.01(z)compliance with each of the financial covenants contained in Sections 7.10, 7.11 and 7.12;
(g) other Indebtedness; provided that (i) at the time of incurrence thereof, no Default has occurred and is continuing or would result from the incurrence of such Indebtedness as long as immediately following the incurrence of such Indebtedness; (ii) immediately before and immediately after giving pro forma effect thereto to the Borrower is incurrence of such Indebtedness, the Company and its Subsidiaries shall be in compliance with each of the financial covenant covenants contained in Section 8.11 on a Pro Forma BasisSections 7.10, subject 7.11 and 7.12; (iii) such Indebtedness shall not be scheduled to mature prior to the limitations set forth Maturity Date and shall not have a weighted average life to maturity (as reasonably determined by the Administrative Agent in accordance with customary financial practice) that is shorter than the remaining term of the Commitments; and (iv) if such Indebtedness is secured, the aggregate amount of such secured Indebtedness does not exceed the amount permitted pursuant to Section 8.017.01(j);
(h) Indebtedness under or in respect of Cash Management Agreements;
(i) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or other similar instrument drawn against insufficient funds in the ordinary course of business;
(j) Indebtedness under letters of credit, performance bonds, surety bonds, release, appeal and similar bonds, statutory obligations or with respect to workers’ compensation claims, in each case incurred in the ordinary course of business, and reimbursement obligations in respect of any of the foregoing (including in respect of letters of credit issued in support of any of the foregoing);
(k) Indebtedness in respect of Permitted Receivables Financings of the Company and/or its Domestic Subsidiaries, Indebtedness in respect of Permitted Receivables Financings of Foreign Subsidiaries and unsecured Indebtedness of Foreign Subsidiaries, so long as the aggregate outstanding amount of all Permitted Receivables Financing including Receivables and Related Assets, and all unsecured Indebtedness of Foreign Subsidiaries shall not exceed $550,000,000 at any time; and
(hl) Guarantees Other unsecured Indebtedness (excluding such Indebtedness of Foreign Subsidiaries); provided that (i) at the time of the incurrence thereof, no Default has occurred and is continuing or would result from the incurrence of such Indebtedness immediately following the incurrence of such Indebtedness; (ii) immediately before and immediately after giving pro forma effect to the incurrence of such Indebtedness, the Company and its Subsidiaries shall be in compliance with respect to each of the financial covenants contained in Sections 7.10, 7.11 and 7.12; and (iii) at the time of the incurrence thereof, the outstanding aggregate principal amount of such Indebtedness permitted under this Section 8.03shall not exceed 10% of Consolidated Assets.
Appears in 1 contract
Indebtedness. CreateThe Borrower will not, and will not permit Guarantor or any of their respective Subsidiaries to, create, incur, assume or suffer to exist or otherwise become or be liable in respect of any Indebtedness, exceptother than, without duplication, the following:
(a) Mortgage Indebtedness under the Loan Documentsand Mezzanine Indebtedness encumbering Properties other than Borrowing Base Properties, including customary recourse guaranties provided in connection therewith;
(b) Unsecured Indebtedness set forth on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, incurred in connection with such refinancing and by an Permitted Construction Indebtedness, subject to compliance with the covenants set forth in Section 7.2.9, not to exceed Fifty Million Dollars ($50,000,000) in aggregate principal amount equal to at any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest ratetime;
(c) intercompany Indebtedness among the Borrower and its SubsidiariesPermitted Borrowing Base Debt;
(d) obligations (contingent or otherwise) existing or arising under any Swap ContractIndebtedness incurred by Borrower, provided that Guarantor and their respective Subsidiaries in respect of (i) such obligations are (or were) Credit Hedging Agreements and other Hedging Agreements entered into by such Person in the ordinary course and not for speculative purposes, (ii) purchase money indebtedness, capital lease obligations or other indebtedness for FF&E incurred in the ordinary course of business for the purpose of directly mitigating risks associated (but, in either case, not with liabilitiesrespect to Property acquisitions or in any event recourse to Borrower or Guarantor), commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes (iii) hotel management agreement fees and obligations incurred in the value ordinary course of securities issued by such Personbusiness, and not (iv) other trade payables, letter of credit reimbursement obligations or guaranties (excluding guarantees of indebtedness for purposes borrowed money or letter of speculation or taking a “market view;” and (iicredit reimbursement obligations relating to indebtedness for borrowed money) such Swap Contract does not contain any provision exonerating incurred in the non-defaulting party from its obligation ordinary course of business, subject to make payments on outstanding transactions to compliance with the defaulting partycovenants set forth in Section 7.2.4;
(e) purchase money IndebtednessAll Obligations hereunder, subject including pursuant to the limitations set forth in Section 8.01(i)Guaranty and Subsidiary Guaranty;
(f) Indebtedness existing in or relating secured by any Liens permitted pursuant to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z)7.2.3;
(g) other Indebtedness existing as long as after giving effect thereto of the Closing Date and identified in Item 7.1.11 of the Disclosure Schedule;
(h) Unsecured Indebtedness of Borrower is in or Guarantor not otherwise permitted under the foregoing clauses (a)-(g), subject to compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations covenants set forth in Section 8.017.2.9, not to exceed $250,000,000 in aggregate principal amount at any time; and
(hi) Guarantees Intercompany Indebtedness issued in accordance with respect to Indebtedness permitted under this Section 8.037.1.11.
Appears in 1 contract
Indebtedness. CreateThe Obligors will not, nor will they permit any of their respective Subsidiaries to, create, incur, assume or suffer permit to exist any Indebtedness, except:
(a) Indebtedness created under the Loan Financing Documents;
(b) Indebtedness outstanding on the date hereof and set forth in Schedule 6.18, and extensions, renewals and replacements of any such Indebtedness that do not increase the aggregate outstanding principal amount thereof;
(c) Indebtedness of a Subsidiary of an Obligor owed to such Obligor or a Wholly Owned Subsidiary of such Obligor, which Indebtedness shall (i) be on Schedule 8.03 terms (including subordination terms) reasonably acceptable to the Lender and renewals(ii) constitute Collateral under the Security Agreement;
(d) Indebtedness of the Borrower or any Subsidiary in respect of Capital Lease Obligations and purchase money obligations for fixed or capital assets, refinancings provided that the aggregate principal amount of Indebtedness permitted by this clause (d) shall not exceed $100,000 at any time outstanding;
(e) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(f) Guarantees of the Borrower in respect of Indebtedness otherwise permitted hereunder of the Borrower;
(g) so long as no Default has occurred and extensions thereofis continuing or would result therefrom, Indebtedness of the Borrower secured by real property owned by the Borrower (but not secured by any Collateral, for avoidance of doubt); provided that the Lender shall have received a Collateral Access Agreement (as such term is defined in the Security Agreement) in respect of such real property from the holder of such Indebtedness and an intercreditor agreement in form and substance reasonably satisfactory to the Lender; and
(h) Indebtedness of any Person that becomes a Subsidiary after the date hereof; provided that (i) the amount of such Indebtedness is not increased exists at the time such Person becomes a Subsidiary and is not created in contemplation of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and Person becoming a Subsidiary, (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) no Default shall have occurred and subordination (if any)be continuing or result therefrom, and other material terms taken as a whole(iii) the Lender shall have received an intercreditor agreement, of any such refinancingin form and substance (including that the Lender shall retain its first-priority, renewal or extension are no less favorable perfected security interest in any material respect the Collateral) satisfactory to the Loan Parties Lender in the Lender’s reasonable discretion, duly executed and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;
(c) intercompany Indebtedness among the Borrower and its Subsidiaries;
(d) obligations (contingent or otherwise) existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into delivered by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by Subsidiary and any other lender(s) to such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) purchase money Indebtedness, subject to the limitations set forth in Section 8.01(i);
(f) Indebtedness existing in or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z);
(g) other Indebtedness as long as after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01; and
(h) Guarantees with respect to Indebtedness permitted under this Section 8.03Subsidiary.
Appears in 1 contract
Samples: Loan Agreement (Valpey Fisher Corp)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Attributable Indebtedness set forth on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, Synthetic Lease Obligations created in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, sale-leaseback of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries Oklahoma Properties or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rateElectrical Assets;
(c) intercompany Indebtedness among outstanding on the Borrower date hereof and its Subsidiarieslisted on Schedule 7.03 and any Permitted Refinancing thereof;
(d) Guarantees of the Borrower or any Guarantor in respect of Indebtedness otherwise permitted hereunder of the Borrower or any Guarantor;
(e) obligations (contingent or otherwise) of the Borrower or any Restricted Subsidiary existing or arising under any Swap Contract, ; provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
party (e) purchase money Indebtedness, subject to the limitations set forth in Section 8.01(iother than customary netting arrangements);
(f) Indebtedness existing in respect of Capital Leases, Synthetic Lease Obligations and purchase money obligations for fixed or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to capital assets within the limitations set forth in Section 8.01(z7.01(q); provided, however, that the aggregate principal amount of all such Indebtedness incurred pursuant to this clause (f) at any one time outstanding shall not exceed $25,000,000;
(g) Indebtedness of the Borrower or a Restricted Subsidiary owing to the Borrower or a wholly-owned Restricted Subsidiary; provided that in the case of any such Indebtedness owing from a Loan Party to a non-Loan Party, (x) the Borrower shall be in compliance with the Available Amount Conditions at the time such Indebtedness is issued or incurred and (y) the amount of such Indebtedness shall not, in the aggregate, exceed the Available Amount at such time;
(h) [reserved];
(i) Indebtedness related to any sale-leaseback transaction with respect to the Oklahoma Properties;
(j) other Indebtedness as long as in an aggregate principal amount not to exceed $5,000,000 at any time outstanding;
(k) Indebtedness in respect of surety bonds obtained by the Borrower or a Restricted Subsidiary in the ordinary course of business and supporting other obligations undertaken by the Borrower or a Restricted Subsidiary in the ordinary course of business which other obligations do not constitute Indebtedness;
(l) Indebtedness that constitutes Junior Lien Debt and unsecured Indebtedness not otherwise permitted by this Section 7.03 in an aggregate principal amount for all Indebtedness under this clause (l) not to exceed $500,000,000 at any time outstanding; provided that (1) no Default or Event of Default or Borrowing Base Deficiency has occurred and is then continuing or would result therefrom, (2) after giving effect thereto to the incurrence of such Indebtedness, the Borrower shall be in compliance, on a pro forma basis with the Financial Covenants contained in Section 7.11, (3) the Borrowing Base shall be adjusted as set forth in Section 2.05(c), (4) such Indebtedness does not mature and requires no scheduled amortization prior to the 91st day following the Maturity Date, (5) the terms of such Indebtedness are not materially more onerous, taken as a whole, than the terms of this Agreement and the other Loan Documents, (6) if any Person Guarantees such Indebtedness, such Person shall also Guarantee the Obligations by providing a guaranty or guaranty supplement, in form and substance reasonably satisfactory to the Administrative Agent and (7) such Indebtedness and any guarantees and Liens in respect thereof are otherwise on terms and conditions reasonably acceptable to the Administrative Agent;
(m) Indebtedness of any Person at the time such Person becomes a Restricted Subsidiary of the Borrower, or is merged or consolidated with or into the Borrower or any of its Restricted Subsidiaries, in a transaction permitted by this Agreement, and extensions, renewals, refinancings, refundings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than any increase not exceeding the amount of any fees, premium, if any, and financing costs relating to such refinancing); provided that (i) such Indebtedness (other than any such extension, renewal, refinancing, refunding or replacement) exists at the time such Person becomes a Restricted Subsidiary and is not created in contemplation of such event, (ii) other than Guarantee obligations permitted by clause (d) of this Section 7.03, neither the Borrower nor any of its other Restricted Subsidiaries shall be liable for such Indebtedness and (iii) the Borrower is in compliance compliance, on a pro forma basis after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, with the financial covenant Financial Covenants contained in Section 8.11 7.11;
(n) Indebtedness of the Borrower or any Restricted Subsidiary to the seller representing all or part of the purchase price of an Investment or acquisition permitted hereunder, or assumed by the Borrower or any of its Restricted Subsidiaries in connection therewith, and extensions, renewals, refinancings, refundings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than any increase not exceeding the amount of any fees, premium, if any, and financing costs relating to such refinancing); provided that (i) as to any such assumed Indebtedness, such Indebtedness (other than any extension, renewal, refinancing, refunding or replacement thereof) exists at the time of such acquisition and is not created in contemplation of such event and (ii) the Borrower is in compliance, on a Pro Forma Basis, subject pro forma basis after giving effect to the limitations set forth assumption of such Indebtedness, with the covenants contained in Section 8.017.11;
(o) Indebtedness arising from judgments or orders in circumstances not constituting an Event of Default under Section 8.01(h);
(p) Indebtedness in respect of the Convertible Notes issued on the Closing Date in an aggregate principal amount not to exceed the sum of (x) $300,000,000 plus (y) any interest that is paid-in-kind and otherwise added to the outstanding principal amount of such Indebtedness and any interest that is accrued and unpaid in respect of such Indebtedness; provided that such $300,000,000 amount in clause (x) above shall increase in connection with any “make-whole event” or “Corporate Event” such that each $1.00 in outstanding principal amount shall be increased by $0.783478 to equal $1.783487, as described in the definitive documentation governing such Convertible Notes as in effect on the Closing Date;
(q) Indebtedness arising from or representing deferred compensation to employees of the Borrower or its Restricted Subsidiaries that constitute or are deemed to be Indebtedness under GAAP and that are incurred in the ordinary course of business;
(r) Indebtedness arising pursuant to clause (e) of the definition thereof as a result of Liens permitted under Sections 7.01(c), (d), (e), (f) and (j); and
(hs) Guarantees with respect to Indebtedness permitted obligations of the Borrower or any Restricted Subsidiary existing or arising under this Section 8.03any Treasury Management Services Agreement.
Appears in 1 contract
Indebtedness. CreateThe Company shall not, and shall not permit any Subsidiary to, create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness set forth outstanding on the date hereof and listed on Schedule 8.03 (7.03 and renewals, refinancings and extensions any Refinancing Indebtedness in respect thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;
(c) intercompany Guarantees of the Company or any Subsidiary in respect of Indebtedness among the Borrower and its Subsidiariesotherwise permitted hereunder;
(d) obligations (contingent or otherwise) of the Company or any Subsidiary existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) unsecured intercompany Indebtedness owed by the Company or any Subsidiary to (i) the Company, (ii) any other Loan Party or (iii) any Subsidiary that is not a Loan Party; provided if Indebtedness arising under clause (iii) is owing by a Loan Party, it is subordinated to the Obligations in a manner reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of capital leases, Synthetic Lease Obligations and purchase money Indebtedness, subject to obligations for fixed or capital assets within the limitations set forth in Section 8.01(i);
7.01(f) and Refinancing Indebtedness in respect of such Indebtedness; provided that (fi) at the time of incurrence thereof, no Default has occurred and is continuing or would result from the incurrence of such Indebtedness existing in or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject immediately following the incurrence of such Indebtedness; and (ii) immediately before and immediately after giving pro forma effect to the limitations set forth incurrence of such Indebtedness the Company and its Subsidiaries shall be in Section 8.01(z)compliance with each of the financial covenants contained in Sections 7.10, 7.11 and 7.12;
(g) other Indebtedness; provided that (i) at the time of incurrence thereof, no Default has occurred and is continuing or would result from the incurrence of such Indebtedness as long as immediately following the incurrence of such Indebtedness; (ii) immediately before and immediately after giving pro forma effect thereto to the Borrower is incurrence of such Indebtedness, the Company and its Subsidiaries shall be in compliance with each of the financial covenant covenants contained in Section 8.11 on a Pro Forma BasisSections 7.10, subject 7.11 and 7.12; (iii) such Indebtedness shall not be scheduled to mature prior to the limitations set forth Maturity Date and shall not have a weighted average life to maturity (as reasonably determined by the Administrative Agent in accordance with customary financial practice) that is shorter than the remaining term of the Commitments; and (iv) if such Indebtedness is secured, the aggregate amount of such secured Indebtedness does not exceed the amount permitted pursuant to Section 8.017.01(k);
(h) Indebtedness under or in respect of Cash Management Agreements;
(i) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or other similar instrument drawn against insufficient funds in the ordinary course of business;
(j) Indebtedness under letters of credit, performance bonds, surety bonds, release, appeal and similar bonds, statutory obligations or with respect to workers’ compensation claims, in each case incurred in the ordinary course of business, and reimbursement obligations in respect of any of the foregoing (including in respect of letters of credit issued in support of any of the foregoing);
(k) Indebtedness in respect of Permitted Receivables Financings of the Company and/or its Domestic Subsidiaries, Indebtedness in respect of Permitted Receivables Financings of Foreign Subsidiaries and unsecured Indebtedness of Foreign Subsidiaries, so long as the aggregate outstanding amount of all Permitted Receivables Financing including Receivables and Related Assets, and all unsecured Indebtedness of Foreign Subsidiaries shall not exceed $550,000,000 at any time;
(l) other unsecured Indebtedness (excluding such Indebtedness of Foreign Subsidiaries); provided that (i) at the time of the incurrence thereof, no Default has occurred and is continuing or would result from the incurrence of such Indebtedness immediately following the incurrence of such Indebtedness; (ii) immediately before and immediately after giving pro forma effect to the incurrence of such Indebtedness, the Company and its Subsidiaries shall be in compliance with each of the financial covenants contained in Sections 7.10, 7.11 and 7.12; and (iii) at the time of the incurrence thereof, the outstanding aggregate principal amount of such Indebtedness shall not exceed 10% of Consolidated Assets; and
(hm) Guarantees with Indebtedness under or in respect to Indebtedness permitted under this Section 8.03of Trade Documents.
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, in each case, of a Subsidiary, except:
(a) Indebtedness under the Loan DocumentsDocuments and under the 364-Day Agreement;
(b) Indebtedness set forth on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;
(c) intercompany Indebtedness among the Borrower and its Subsidiaries;
(d) obligations (contingent or otherwise) existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “"market view;” "; and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(c) endorsements for collection or deposit in the ordinary course of business;
(d) Indebtedness existing on the Closing Date in an amount not to exceed $2,000,000,000;
(e) purchase money IndebtednessIndebtedness secured by Liens permitted by Sections 7.01(b), subject to the limitations set forth in Section 8.01(i(c), (d), (e), (h) or (i);
(fi) Acquired Indebtedness existing (other than Non-Recourse Acquired Indebtedness) not exceeding $500,000,000 in or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or rightaggregate principal amount at any time outstanding and (ii) Non-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z)Recourse Acquired Indebtedness;
(g) other capital leases entered into by any Subsidiary after the Closing Date to finance the acquisition of equipment or real property;
(h) Indebtedness as long as after giving effect thereto of wholly-owned Subsidiaries of the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01Borrower or to other wholly-owned Subsidiaries of the Borrower; and
(hi) Guarantees with respect to additional Indebtedness permitted under this Section 8.03incurred after the Closing Date not exceeding $500,000,000 in aggregate principal amount at any time outstanding.
Appears in 1 contract
Indebtedness. CreateNo Borrower will permit any Material Subsidiary (other than a Borrower or a Guarantor) to create, incur, assume or suffer to exist any IndebtednessDebt, exceptother than the following:
(i) [Reserved];
(ii) Debt outstanding on the date hereof and listed on Schedule 7.01;
(iii) Guarantees by (A) any Material Subsidiary in respect of Debt of a Borrower or a Guarantor or (B) any Material Subsidiary of Debt of any Subsidiary, in each case if such Debt is otherwise not prohibited hereunder;
(iv) Consolidated Operating Debt;
(v) Debt of any Material Subsidiary (including Capital Leases, mortgage financings or purchase money obligations) incurred to finance or reimburse the purchase price or cost of the acquisition, development, construction, alteration, purchase, lease, repair, addition or improvement of property (real or personal), plant, equipment or other fixed or capital assets (whether through the direct purchase of assets or the purchase of Equity Interests of any Person owning such assets), within the limitations set forth in Section 7.02(ix);
(vi) Debt of any Person that becomes a Material Subsidiary of a Borrower after the date hereof; provided that (A) such Debt exists at the time such Person becomes a Material Subsidiary and is not created in contemplation of or in connection with such Person becoming a Material Subsidiary and (B) after giving effect to such Person becoming a Material Subsidiary, the Borrowers shall be in compliance with the covenants in Section 7.09 on a pro forma basis;
(vii) obligations of any Subsidiary to maintain the net worth, capital or solvency of any of its Subsidiaries in accordance with the requirements of or under any agreement with their respective Applicable Insurance Regulatory Authority;
(viii) Debt owing to any Borrower or any other Subsidiary of a Borrower;
(a) Indebtedness obligations and liabilities (whether directly or as a guarantor) of any Material Subsidiary arising under the Loan Documents;
(b) Indebtedness set forth on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing treasury, depositary, cash management, custodial, overdraft, commercial purchase cards, automated clearinghouse or transfer of funds services or arrangements or similar services and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;
(c) intercompany Indebtedness among the Borrower and its Subsidiaries;
(d) obligations (contingent or otherwise) existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person arrangements incurred in the ordinary course of 243071545v.24 business and (b) Debt arising in connection with endorsement of instruments for deposit in the ordinary course of business;
(x) Non-Recourse Debt;
(xi) Debt comprised of “minute notes” or other similar Debt issued or incurred in connection with any acquisition, reinsurance or other investment transaction so long as such Debt is repaid or otherwise discharged within 5 Business Days of the closing of such acquisition, reinsurance or other investment transaction;
(xii) Debt of the ACRA Group so long as after giving effect to the issuance or incurrence thereof, the Consolidated Debt to Capitalization Ratio of the ACRA Group does not exceed 25.0% (calculated (i) by ignoring any Debt outstanding under clause (xi) above and (ii) after eliminations for intercompany Debt among AHL and/or any of its Subsidiaries), determined on a pro forma basis as of the last day of the most recently ended fiscal period for which financial statements have been delivered pursuant to Section 6.01(i) or Section 6.01(ii) (or, if prior to any such delivery, those financial statements referred to in Section 5.05(a)), as applicable (Debt permitted pursuant to this clause, “ACRA Permitted Debt”);
(xiii) Debt so long as, after giving effect to the issuance or incurrence thereof, the aggregate principal amount of such Debt, together with (A) any Debt outstanding pursuant to clause (xvi) below in respect of Debt initially incurred under this clause (xiii) and (B) (but without duplication of) the aggregate principal amount of any Debt or other obligations secured by Liens pursuant to Section 7.02(xxxv) (and any refinancings of such Debt or other obligations outstanding secured by Liens initially incurred pursuant to Section 7.02(xxxv)), is not in excess of 10% of Consolidated Adjusted Capitalization of AHL and its Subsidiaries (calculated by ignoring any Debt outstanding under clause (xi) above), determined on a pro forma basis as of the last day of the most recently ended fiscal period for which financial statements have been delivered pursuant to Section 6.01(i) or Section 6.01(ii) (or, if prior to any such delivery, those financial statements referred to in Section 5.05(a)), as applicable;
(xiv) Debt arising from agreements of a Material Subsidiary providing for indemnification, adjustment of purchase price, earn-outs or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business or assets, other than Guarantees of Debt incurred by any Person acquiring all or any portion of such business, assets or Equity Interests for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by financing such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting partyacquisition;
(exv) purchase money IndebtednessDebt incurred by any Material Subsidiary in connection with third-party insurance premium financing arrangements in the ordinary course of business; and
(xvi) Debt issued or incurred to refinance, refund, renew or extend any Debt permitted under the foregoing clauses (ii), (v) (which shall be subject to the limitations set forth in Section 8.01(i7.02(ix);
), (fvi), (xii), (xiii) Indebtedness existing and (xiv); provided that the amount of such Debt is not in excess of the principal amount of Debt (plus accrued interest, fees, premiums (including tender premiums) and expenses with respect thereto) being refinanced, refunded, renewed or relating extended at the time of such refinancing, refunding, renewal or extension except by (x) an amount equal to real estate acquired by a Loan Party underwriting discounts or a Subsidiary for transmissionother amounts paid, distribution and fees, commissions, premiums (including tender premiums) and expenses (including upfront fees, original issue discount or right-of-way purposes or initial yield payments) incurred in connection with its usual operationssuch refinancing, subject refunding, renewal or extension and (y) an amount equal to the limitations set forth in Section 8.01(z);
(g) other Indebtedness as long as after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01; and
(h) Guarantees any 243071545v.24 existing Designated Unutilized Commitments with respect to Indebtedness permitted the refinancing, refunding, renewal or extension of any Debt under this Section 8.03the foregoing clauses (ii) or (vi).
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness set forth outstanding on the date hereof and listed on Schedule 8.03 (7.3 and renewalsany refinancings, refinancings and refundings, renewals or extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;
(c) intercompany Indebtedness among Guaranty Obligations of the Borrower and its Subsidiariesor any Restricted Subsidiary in respect of Indebtedness otherwise permitted hereunder of the Borrower or any wholly-owned Restricted Subsidiary provided all such Indebtedness shall be evidenced by Pledged Notes (as described in the Pledged Agreements) which shall have been pledged the Administrative Agent in accordance with the Pledge Agreements;
(d) obligations (contingent or otherwise) of the Borrower or any Restricted Subsidiary existing or arising under any Swap ContractHedging Agreement with any Lender or any Person with an investment grade debt rating acceptable to the Administrative Agent at the time such Hedging Agreement is entered into or any other Person acceptable to the Administrative Agent, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, Person and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract Hedging Agreement does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) purchase money IndebtednessIndebtedness in an aggregate principal amount not to exceed $25,000,000 at any time outstanding, subject to provided that such Indebtedness shall either be unsecured or secured only by Liens satisfying all of the limitations conditions set forth in Section 8.01(i7.1(h);
(f) unsecured Indebtedness existing in or relating to real estate acquired by a Loan Party or a Subsidiary for transmissionof Borrower (and related Guaranty Obligations of the Guarantors) outstanding under (i) the 2004 Senior Notes Indenture, distribution or right-of-way purposes or in connection with its usual operationsprovided that the aggregate principal amount of any Indebtedness outstanding thereunder shall not exceed $175,000,000 at any time, subject to (ii) the limitations set forth in Section 8.01(z)2009 Senior Notes, provided that the aggregate principal amount of any Indebtedness outstanding thereunder shall not exceed $300,000,000 at any time, (iii) any Permitted Additional Notes, provided that the aggregate principal amount of any Indebtedness outstanding thereunder shall not exceed $300,000,000 at any time, and (iv) any Permitted Refinancing Indebtedness;
(g) other Indebtedness as long as after giving effect thereto constituting intercompany loans or advances owing by a Guarantor to the Borrower is in compliance with the financial covenant in Section 8.11 on evidenced by a Pro Forma Basis, subject to the limitations set forth in Section 8.01Pledged Note; and
(h) Guarantees with respect to Indebtedness permitted under this Section 8.03Unsecured insurance premium financing in the ordinary course of business.
Appears in 1 contract
Indebtedness. CreateBe indebted for borrowed money, incurthe deferred purchase price of property, assume or suffer to exist leases which would be capitalized in accordance with GAAP; or become liable as a surety, guarantor, accommodation party or otherwise for or upon the obligation of any Indebtednessother Person, except:
(a) Indebtedness under incurred for the Loan Documentsacquisition of supplies or inventory on normal trade credit;
(b) Indebtedness set forth on Schedule 8.03 incurred pursuant to one or more transactions permitted under Section 6.4;
(and renewalsc) Indebtedness of Borrower under this Agreement;
(d) Subordinated Debt;
(e) Indebtedness of Borrower under the 2010 Loan Agreement;
(f) Bank Debt not to exceed $3,000,000 in aggregate principal amount outstanding at any time, refinancings and extensions thereof); provided that (i) the aggregate amount of such the Indebtedness is permitted pursuant to this Section 6.1(f), plus the aggregate amount of the Indebtedness permitted pursuant to Section 6.1(h) shall not increased exceed $6,000,000 in aggregate principal amount outstanding at the any one time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;
(c) intercompany Indebtedness among the Borrower and its Subsidiaries;
(d) obligations (contingent or otherwise) existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (iiclarity this Section 6.1(f) such Swap Contract does not contain modify, and shall not be deemed to modify in any provision exonerating manner, the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) purchase money Indebtedness, subject to the limitations covenants set forth in Section 8.01(i);
(f) Indebtedness existing in or relating to real estate acquired by a the 2010 Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z)Agreement;
(g) other Indebtedness as long as after giving effect thereto for automobile leases and related insurance not to exceed $24,000 per calendar year;
(h) Indebtedness for leased office Equipment (with “Indebtedness for leased office Equipment” taking into account both leases which would be capitalized in accordance with GAAP and leases which would not be capitalized in accordance with GAAP) not to exceed $6,000,000 in aggregate amount outstanding at any time, provided, however, that for purposes of clarity this Section 6.1(h) does not modify, and shall not be deemed to modify in any manner, the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations covenants set forth in Section 8.01the 2010 Loan Agreement; and
(hi) Guarantees any Indebtedness approved by Lender as shown on Schedule 6.1 hereto (as the same may be amended from time to time with respect to Indebtedness permitted Lender’s consent). Borrower and Lender agree that compliance with the terms of Sections 6.1(f) and 6.1(h) hereof shall be determined by Borrower as of the last day of each month in which Loans are outstanding under this Section 8.03Agreement.
Appears in 1 contract
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness, except:
(a) Indebtedness created hereunder and under the other Loan Documents;
(b) Indebtedness existing on the Restatement Effective Date and set forth on in Schedule 8.03 (6.03 and renewals, refinancings and extensions any Permitted Refinancing thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;
(c) intercompany Indebtedness among the Borrower and its Subsidiaries;
(d) obligations (contingent or otherwise) of the Borrower or a Restricted Subsidiary existing or arising under any Swap ContractHedging Agreement, provided that (i) such obligations are (or were) entered into by such Person as required by the Loan Documents or in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” ”; and (ii) such Swap Contract Hedging Agreement does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(ed) Indebtedness in respect of Capital Lease Obligations and purchase money Indebtedness, subject to obligations for fixed or capital assets and industrial revenue bonds within the limitations set forth in Section 8.01(i)6.01(i) in an amount not exceeding $150,000,000 in the aggregate at any time outstanding;
(e) the Senior Notes outstanding on the Restatement Effective Date and Permitted Refinancings thereof;
(f) Indebtedness existing pursuant to any Secured Cash Management Agreement incurred in or relating to real estate acquired by a Loan Party or a Subsidiary the ordinary course of business and customary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z)Cash Management Agreements generally;
(g) other Indebtedness as long as after giving effect thereto surety, financial assurance, completion, performance, reclamation and similar bonds and bid guarantees provided by or issued on behalf of the Borrower or any Restricted Subsidiary, including, without limitation, with respect to the closure, final-closure and post-closure liabilities related to landfills owned or operated by the Borrower or such Restricted Subsidiary, in each case, incurred in the ordinary course of business;
(h) Indebtedness issued as part of the purchase price for a Permitted Acquisition or in the form of “earnout” payments (and any Permitted Refinancings thereof); provided that such Indebtedness shall be subordinated to the Obligations in form and substance satisfactory to the Administrative Agent;
(i) 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 one (1) Business Day following its incurrence;
(j) unsecured Indebtedness arising in compliance connection with endorsement of instruments for deposit in the ordinary course of business;
(k) Guarantees in respect of Indebtedness otherwise permitted hereunder;
(l) Indebtedness created in the ordinary course of business pursuant to insurance premium finance agreements;
(m) indemnification obligations arising in connection with Permitted Acquisitions;
(n) Permitted Ratio Debt;
(o) Indebtedness of the Borrower or a Restricted Subsidiary owing to the Borrower or a Subsidiary; provided that (i) such Indebtedness, to the extent owed by a Loan Party to a Subsidiary that is not a Loan Party, shall be subordinated in right of payment to the Obligations in a manner reasonably satisfactory to the Administrative Agent and (ii) to the extent arising from an Investment by the Borrower or a Restricted Subsidiary, such Investment is permitted by Section 6.02(h);
(p) Indebtedness of a Subsidiary acquired after the Restatement Effective Date or a person merged into or consolidated with the financial covenant Borrower or any Subsidiary after the Restatement Effective Date and Indebtedness assumed in Section 8.11 on a Pro Forma Basisconnection with the acquisition of assets (and any Permitted Refinancings thereof), subject to which Indebtedness in each case exists at the limitations set forth time of such acquisition, merger or consolidation and is not created in Section 8.01contemplation of such event and where such acquisition, merger or consolidation is permitted by this Agreement; and
(hq) Guarantees unsecured Indebtedness in respect of obligations of the Borrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with respect such good 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;
(r) Indebtedness representing deferred compensation to employees of the Borrower or any Subsidiary incurred in the ordinary course of business;
(s) all premium (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on Indebtedness permitted under this Section 8.036.03;
(t) Indebtedness (A) of a Special Purpose Subsidiary secured by a Lien on all or part of the assets disposed of in, or otherwise Incurred in connection with, a Financing Disposition or (B) otherwise incurred in connection with a Special Purpose Financing; provided that (1) such Indebtedness is not recourse to the Borrower or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings); (2) in the event such Indebtedness shall become recourse to the Borrower or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), such Indebtedness will be deemed to be, and must be classified by the Borrower as, incurred at such time (or at the time initially incurred) under one or more of the other provisions of this Section 6.03 for so long as such Indebtedness shall be so recourse; (3) in the event that at any time thereafter such Indebtedness shall comply with the provisions of the preceding subclause (1), the Borrower may classify such Indebtedness in whole or in part as Incurred under this Section 6.03(t); and (4) the aggregate amount of Indebtedness outstanding pursuant to this paragraph (t) shall not at any time exceed $25,000,000;
(u) in addition to other Indebtedness permitted under this Section 6.03, additional Indebtedness of the Borrower or any of the Restricted Subsidiaries so long as the aggregate amount pursuant to this paragraph (u) outstanding shall not at any time exceed $100,000,000; and
(v) bilateral letter of credit facilities in an aggregate amount not to exceed $45,000,000 at any time outstanding.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Advanced Disposal Services, Inc.)
Indebtedness. Create, incur, assume or assume, suffer to exist exist, guarantee, or otherwise become or remain, directly or indirectly, liable with respect to any Indebtedness, except:
(a) Indebtedness under evidenced by this Agreement and the other Loan Documents, together with Indebtedness owed to Underlying Issuers with respect to Underlying Letters of Credit;
(b) Indebtedness under the Pre-Petition Credit Facility, the Pre-Petition Swap Obligations and the other Indebtedness set forth on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate5.16;
(c) intercompany Indebtedness among the Borrower and its SubsidiariesPermitted Purchase Money Indebtedness;
(d) endorsement of instruments or other payment items for deposit;
(e) Indebtedness associated with bonds or surety obligations (contingent or otherwise) existing or arising under any Swap Contractrequired by Governmental Requirements in connection with the operation of the Oil and Gas Properties; provided, provided that (i) such obligations are (bond or were) entered into by such Person surety obligation is incurred in the ordinary course of business for to support plug and abandonment, general liability or operator obligations or any future Governmental Requirements not existing on the purpose Interim Facility Effective Date in respect of directly mitigating risks associated with liabilitiesan Oil and Gas Property of a Borrower, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) neither any Borrower nor any Subsidiary thereof will create, incur or suffer to exist any Lien on any of its assets or properties (whether by contract, statute, suretyship law or otherwise) in respect of any such Swap Contract does not contain bond or surety obligation except for any provision exonerating Lien arising under clause (j) of the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) purchase money Indebtedness, subject to the limitations set forth in Section 8.01(i)definition of Permitted Lien;
(f) Indebtedness existing in or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z)composing Permitted Investments;
(g) other intercompany Indebtedness as long as after giving effect thereto the Borrower is in compliance with the financial covenant described in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.017.12(a); and
(h) Guarantees with respect Indebtedness under Swap Agreements in the ordinary course of business, for non-speculative purposes and to Indebtedness the extent permitted under this Section 8.037.23.
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) (i) Indebtedness under the Loan DocumentsDocuments and (ii) any Refinancing Notes incurred to refinance such Indebtedness;
(b) Indebtedness of the Company and its Restricted Subsidiaries set forth on in Schedule 8.03 8.03(b) (and renewals, refinancings and extensions thereof); provided that (i) the amount of such Indebtedness is thereof on terms and conditions not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no materially less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest ratedebtor(s));
(c) intercompany Indebtedness among permitted under Section 8.02(e), (k), (l), (m), (n), (o) or (q), so long as, from and after the Borrower date an Affiliate Subordination Agreement is required to be entered into pursuant to Section 7.17, any such Indebtedness constituting an obligation of a Loan Party is subordinated to the Obligations pursuant to, and its Subsidiariesto the extent required by, an Affiliate Subordination Agreement;
(d) obligations (contingent or otherwise) of the Company or any Restricted Subsidiary existing or arising under any Swap Contract, ; provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, or changes in currency rates or interest rates, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) purchase money IndebtednessIndebtedness (including obligations in respect of Capital Leases or Synthetic Lease Obligations) incurred by the Company or any of its Restricted Subsidiaries to finance the purchase of fixed assets or software, and renewals, refinancings and extensions thereof; provided that (i) such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed; and (ii) no such Indebtedness shall be refinanced for a principal amount in excess of the principal balance outstanding thereon at the time of such refinancing;
(i) Guarantees of stock-based acquisition consideration incurred in connection with a Permitted Acquisition; provided that no cash payments may be made in respect of any such Guarantee unless, at the time of such cash payment, the Company would be permitted to make a Restricted Payment in such amount under Section 8.06(e); provided, however, that the Company shall not be required to comply with Section 8.06(e)(ii)(y) in order to make cash payments in respect of the Guarantees of stock-based acquisition consideration in effect on the Closing Date and listed on Schedule 8.03(f) (without giving effect to any amendment, amendment and restatement, supplement, refinancing, replacement or other modification thereto on or after the Closing Date that has the effect of increasing the amount of any such payments or accelerating the date therefor);
(g) unsecured Indebtedness assumed in Permitted Acquisitions (and not incurred in contemplation thereof) and renewals, refinancings and extensions thereof on terms and conditions not materially less favorable to the applicable debtor(s));
(h) secured Indebtedness assumed in Permitted Acquisitions (and not incurred in contemplation thereof) in an aggregate principal amount not to exceed $45,000,000 at any one time outstanding, and renewals, refinancings and extensions thereof;
(i) [Reserved];
(j) Indebtedness of the Company arising under the 2010 Senior Note Documents in an aggregate outstanding principal amount not to exceed $400,000,000 and any Permitted Refinancing thereof;
(k) any issuance from time to time of Capital Stock of any Restricted Subsidiary to any Employee or in respect of any Employee pursuant to a Subsidiary Employee Plan; provided that (i) after giving effect to such issuance such Restricted Subsidiary remains a Subsidiary of the Company, (ii) such Capital Stock issued to Employees or in respect of Employees does not materially reduce the Company’s Control of such Restricted Subsidiary and (iii) the Capital Stock issued to such Employees or in respect of such Employees does not materially reduce the economic interests of the Company in such Restricted Subsidiary;
(l) [Reserved];
(m) Indebtedness of Foreign Subsidiaries (and renewals, refinancings and extensions thereof) in an aggregate principal amount at any time outstanding for all such Persons taken together not exceeding (when created, incurred or assumed) $75,000,000;
(n) Guarantees with respect to Indebtedness permitted by this Section 8.03; provided that any Guarantee by the Company or any Domestic Subsidiary of Indebtedness of a Foreign Subsidiary (other than Guarantees of Indebtedness arising under the Loans Documents) shall be subject to the limitations set forth in Section 8.01(i8.02; provided further that only a Guarantor may guaranty Indebtedness under clause (a)(ii), (j), (o), (p), (r) or (s);
(fo) Indebtedness existing arising under the 2012 Senior Note Documents in or relating an aggregate outstanding principal amount not to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or exceed $300,000,000 and any Permitted Refinancing thereof;
(p) Indebtedness arising under unsecured seller notes issued in connection with its usual operationsa Permitted Acquisition; provided that (i) the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the greater of (x) $100,000,000 and (y) 4% of Consolidated Total Assets at the time of the incurrence of such Indebtedness, subject and (ii) such Indebtedness shall be subordinated to the limitations set forth Obligations in Section 8.01(za manner and to an extent satisfactory to the Administrative Agent (the “Subordinated Seller Indebtedness”);
(gq) other Indebtedness as of any Restricted Subsidiary evidenced by promissory notes issued to Employees (or their respective spouses) of such Restricted Subsidiary or any of its Subsidiaries in lieu of cash payments for Capital Stock being repurchased from such Restricted Subsidiary in connection with a Subsidiary Employee Plan;
(r) unsecured Indebtedness of a Loan Party so long as as, both immediately before and after giving effect thereto to the Borrower incurrence thereof, (i) no Default or Event of Default exists, (ii) the stated maturity date of such Indebtedness is no earlier than the Latest Maturity Date, and the weighted average life of such Indebtedness is not shorter than that of the Commitments in compliance with effect at the financial covenant time of incurrence (subject to an exception to this clause (ii) for any such outstanding Indebtedness in Section 8.11 an aggregate principal amount not to exceed $100,000,000), (iii) upon giving effect to the incurrence of such unsecured Indebtedness on a Pro Forma Basis, (x) the Loan Parties would be in compliance with the Financial Covenants and (y) the Consolidated Total Leverage Ratio shall not exceed 3.75 to 1.00, in each case, as of the end of the period of four fiscal quarters most recently ended for which the Company has either delivered financial statements pursuant to Section 7.01(a) or (b) or with respect to fiscal periods ending prior to the Closing Date, for which the Company has filed financial statements with the SEC, and (iv) the Company shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating the matters referred to in clause (iii) above;
(s) any equal or junior priority secured or unsecured loans or notes issued by the Company in lieu of the Additional Revolving Commitments and Incremental Term Facilities (such loans and notes, “Incremental Equivalent Debt”); provided that (i) the incurrence of such Indebtedness shall result in a dollar for dollar reduction in the amount of Indebtedness that the Company may incur in respect of the Additional Revolving Commitments and the Incremental Term Facilities, (ii) such Indebtedness, if secured, is secured on a pari passu or junior basis with the Lien securing the Obligations, by only the Collateral and subject to an Intercreditor Agreement and is not guaranteed by any Persons other than the limitations Guarantors and (iii) such Incremental Equivalent Debt otherwise satisfies the requirements set forth Sections 2.17 (a), (e)(1)(B), (e)(2) and (g);
(t) Indebtedness (i) incurred in Section 8.01respect of workers’ compensation claims and self-insurance obligations, and, for the avoidance of doubt, indemnity, bid, performance, warranty, release, appeal, surety and similar bonds, standby letters of credit, letters of credit for operating purposes and completion guarantees provided or incurred or provided (including Guarantees thereof) by the Company or a Restricted Subsidiary in the ordinary course of business and (ii) consisting of performance guarantees, comfort letters, or like instruments entered into by the Company for the purpose of enhancing the credit or commercial standing of a Restricted Subsidiary of the Company, in each case in the ordinary course of business or consistent with past practice;
(u) 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 business days of incurrence;
(v) Indebtedness arising from agreements of the Company or a Restricted Subsidiary providing for indemnification, contribution, earnout, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or Capital Stock of a Restricted Subsidiary otherwise permitted under this Agreement; and
(hw) Guarantees Indebtedness and other obligations in respect of netting services, overdraft protections and similar arrangements, in each case in connection with respect to Indebtedness permitted under cash management agreements or deposit accounts incurred in the ordinary course of business and repaid within ten Business Days. For purposes of determining compliance with this Section 8.03, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories described in clauses (a) through (s) above, the Company shall be permitted to classify such item of Indebtedness on the date of its incurrence in any manner that complies with this Section 8.03. The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of preferred stock as Indebtedness due to a change in accounting principles, and the payment of dividends on any Capital Stock referred to in clause (g) of the definition of “Funded Indebtedness” in the form of additional shares of the same class of such Capital Stock shall not be deemed to be an incurrence of Indebtedness or an issuance of any such Capital Stock for purposes of this Section 8.03. Notwithstanding any other provision of this Section 8.03, the maximum amount of Indebtedness that the Company or any Restricted Subsidiary may incur pursuant to this Section 8.03 shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values.
Appears in 1 contract
Indebtedness. CreateUntil the occurrence of the Guarantee Release Date (whereupon Clause 9.2 of Schedule R shall apply in accordance with Clause 9.12), the Borrower will not permit any of the Existing Principal Subsidiaries to create, incur, assume or suffer to exist or otherwise become or be liable in respect of any Indebtedness, exceptother than, without duplication, the following:
(a) Indebtedness secured by Liens permitted under the Loan Documentsparagraphs (c) to (p) of Clause 9.3 (Liens);
(b) Indebtedness set forth on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect owing to the Loan Parties and their Subsidiaries Borrower or any direct or indirect Subsidiary of the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rateBorrower;
(c) intercompany Indebtedness among incurred to finance, refinance or refund the Borrower and its Subsidiariescost (including the cost of construction) of assets acquired after the date hereof;
(d) obligations Indebtedness in an aggregate principal amount, together with (contingent or otherwisebut without duplication of) existing or arising Indebtedness secured by Liens permitted under paragraph (d) of Clause 9.3 (Liens), at any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, one time outstanding and not for purposes exceeding (determined at the time of speculation creation of any such Lien or taking the incurrence by any Existing Principal Subsidiary of such Indebtedness, as applicable) ten per cent. (10%) of the total assets of the Borrower and its Subsidiaries taken as a “market view;” and (ii) such Swap Contract does not contain any provision exonerating whole as determined in accordance with GAAP as at the non-defaulting party from its obligation to make payments on outstanding transactions to last day of the defaulting partymost recent ended Fiscal Quarter;
(e) purchase money Indebtedness, subject to the limitations set forth in Section 8.01(i)[Intentionally Omitted];
(f) Indebtedness existing obligations in respect of Hedging Instruments entered into for the purpose of managing interest rate, foreign currency exchange or relating to real estate acquired by a Loan Party or a Subsidiary commodity exposure risk and not for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z);speculative purposes; and
(g) other Indebtedness as long as after giving effect thereto the Borrower is in compliance with the financial covenant of Silversea Cruise Holding Ltd. and its Subsidiaries (“Silversea”) identified in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01; and
1 of Schedule J (hSilversea Liens and Indebtedness) Guarantees with respect to Indebtedness permitted under this Section 8.03hereto.
Appears in 1 contract
Samples: Fifth Amendment and Restatement Agreement (Royal Caribbean Cruises LTD)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Note Documents;
(b) Indebtedness set forth of Parent and its Subsidiaries existing on the Closing Date and described on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rateDisclosure Letter;
(c) intercompany Indebtedness among the Borrower and its Subsidiariespermitted under Section 8.02;
(d) obligations (contingent or otherwise) of Parent or any Subsidiary existing or arising under any Swap Contract, provided that (i) provided, that, such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party”;
(e) (x) purchase money IndebtednessIndebtedness (including obligations in respect of Capital Leases or Synthetic Leases) hereafter incurred by Parent or any of its Subsidiaries to finance the purchase of fixed assets, subject and renewals, refinancings and extensions thereof, provided, that, (i) the total of all such Indebtedness incurred in reliance on this clause (x) for all such Persons taken together, together with the total of all Indebtedness assumed by Parent and its Subsidiaries in reliance on clause (y) of this Section 8.03(e), shall not exceed an aggregate principal amount of $3,500,000 at any one time outstanding, (ii) such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed, and (iii) no such Indebtedness shall be refinanced for a principal amount in excess of the principal balance outstanding thereon at the time of such refinancing (other than by an amount equal to unpaid interest and premium thereon, and any underwriting discounts, fees, commissions and expenses associated with such refinancing) and (y) purchase money Indebtedness (including obligations in respect of Capital Leases or Synthetic Leases) assumed in connection with a Permitted Acquisition or other Investment permitted by Section 8.02, that was incurred to finance the limitations set forth purchase of fixed assets, and renewals, refinancings and extensions thereof; provided, that, (i) the total of all such Indebtedness assumed in reliance on this clause (y) for all such Persons taken together, together with the total of all Indebtedness incurred by Parent and its Subsidiaries in reliance on clause (x) of this Section 8.01(i8.03(e);, shall not exceed an aggregate principal amount of $3,500,000 at any one time outstanding, (ii) no such Indebtedness shall be refinanced for a principal amount in excess of the principal balance outstanding thereon at the time of such refinancing (other than by an amount equal to unpaid interest and premium thereon, and any underwriting discounts, fees, commissions and expenses associated with such refinancing) and (iii) such Indebtedness shall not have been incurred in contemplation of or in connection with such Permitted Acquisition or other Investment; \DC - 031561/000013 - 10875187 v5 \DC - 031561/000013 - 10875187 v7 \DC - 031561/000013 - 10875187 v9
(f) Indebtedness existing in or respect of obligations relating to real estate acquired by a Loan Party corporate credit cards, purchase cards or a Subsidiary for transmissionbank card products, distribution or right-of-way purposes or not to exceed $2,000,000 in connection with its usual operations, subject to the limitations set forth in Section 8.01(z)aggregate at any one time outstanding;
(g) other Guarantees of Indebtedness as long as after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01; and
(h) Guarantees with respect to Indebtedness otherwise permitted under this Section 8.03;
(h) Indebtedness with respect to outstanding letters of credit, banker’s acceptances or similar instruments posted in the ordinary course of business, provided the outstanding principal amount of such Indebtedness shall not exceed $6,250,000 in the aggregate at any time;
(i) Indebtedness in respect of any agreement providing for treasury, depositary, or cash management services, including in connection with any automated clearing house transfers of funds or any similar transactions, securities settlements, foreign exchange contracts, assumed settlement, netting services, overdraft protections and other cash management, intercompany cash pooling and similar arrangements, in each case in the ordinary course of business;
(j) advances or deposits in the ordinary course of business from customers, vendors or partners and not constituting Indebtedness for borrowed money;
(k) workers’ compensation claims, payment obligations in connection with health, disability or other types of social security benefits, unemployment or other insurance obligations, reclamation and statutory obligations, in each case incurred in the ordinary course of Parent’s or its Subsidiaries’ business;
(l) Indebtedness and related guarantees incurred solely as a result of endorsing negotiable instruments in the ordinary course of business;
(m) Indebtedness constituting Earn Out Obligations or obligations in respect of working capital adjustment requirements under the agreements used to consummate a Permitted Acquisition or other Investment permitted under Section 8.02;
(n) other unsecured Indebtedness in an aggregate amount not to exceed $2,000,000 at any one time outstanding;
(o) Indebtedness in respect of (i) surety and appeal bonds, performance bonds, bid bonds, appeal bonds, completion guarantees and similar obligations incurred in the ordinary course of business and (ii) customary indemnification obligations to purchasers in connection with Dispositions permitted by Section 8.05;
(p) Indebtedness owed to any Person in respect of the purchase price for property, casualty, liability, or other insurance to any Note Party or to any of their Subsidiaries, or to a premium finance company with respect only to such insurance premiums; and
(q) Permitted Convertible Bond Indebtedness, provided that the aggregate principal amount of Indebtedness incurred pursuant to this clause (q), when multiplied by the per annum cash interest rate applicable to such Indebtedness, shall not exceed $6,750,000 at any time outstanding.
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness set forth on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that Indebtedness: (i) outstanding on the amount of such date hereof and listed on Schedule 7.03 and any Refinancing Indebtedness is not increased at the time of such refinancing, renewal in respect thereof; or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) to be incurred after the terms relating to principal amount, amortization, maturity, collateral (if any) Closing Date and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable which has been previously disclosed in any material respect reasonable detail to the Loan Parties Administrative Agent and their Subsidiaries or the Lenders than in writing at least three (3) Business Days prior to the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rateClosing Date;
(c) intercompany Guarantees of (i) the Company or any Restricted Subsidiary in respect of Indebtedness among otherwise permitted hereunder of the Borrower Company or any Restricted Subsidiary (other than in respect of Indebtedness permitted under Sections 7.03(g) and its Subsidiaries7.03(i)); (ii) any Loan Party in respect of Indebtedness permitted under Section 7.03(g); and (iii) any Limited Subsidiary in respect to Indebtedness permitted under Section 7.03(i);
(d) obligations (contingent or otherwise) of the Company or any Subsidiary existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) unsecured intercompany Indebtedness (i) owed by the Company or any Wholly Owned Restricted Subsidiary to the Company, any other Loan Party or any other Wholly Owned Restricted Subsidiary that is not a Loan Party, (ii) owed by any Restricted Subsidiary (other than a Wholly Owned Restricted Subsidiary or a Loan Party) to the Company, any other Loan Party or a Wholly Owned Restricted Subsidiary that is not a Loan Party so long as the related Investment by the Company, other Loan Party or Wholly Owned Restricted Subsidiary that is not a Loan Party is permitted by Section 7.02(h), (iii) owed by a Restricted Subsidiary that is not a Wholly Owned Restricted Subsidiary to another Restricted Subsidiary that is not a Wholly Owned Restricted Subsidiary and (iv) owed by the Company or any Wholly Owned Restricted Subsidiary to a Restricted Subsidiary that is not a Wholly Owned Restricted Subsidiary and not a Loan Party so long as (A) the Investment by such Restricted Subsidiary is permitted by Section 7.02(h) and (B) if such Indebtedness is owing by a Loan Party, it is subordinated to the Obligations in a manner reasonably satisfactory to the Administrative Agent;
(f) (i) Indebtedness in respect of capital leases, Synthetic Lease Obligations and purchase money Indebtedness, subject to obligations for fixed or capital assets within the limitations set forth in Section 8.01(i7.01(i) and Refinancing Indebtedness in respect of such Indebtedness; (ii) other Indebtedness of a Person existing at the time such Person became a Subsidiary or assets were acquired from such Person in connection with an Investment permitted pursuant to Section 7.02 and Refinancing Indebtedness in respect of such Indebtedness so long as any such Indebtedness described in this clause (ii) or any Refinancing Indebtedness in respect thereof (A) was not incurred in connection with, or in contemplation of, such Person becoming a Subsidiary or the acquisition of such assets, and (B) neither the Company nor any Restricted Subsidiary thereof (other than such Person or any other Person that such Person merges with or that acquires the assets of such Person) shall have any liability or other obligation with respect to such Indebtedness; provided that the aggregate amount of such Indebtedness incurred at any time under this subsection (f);
, when combined with all other Indebtedness incurred previously pursuant to this subsection (f) (and after giving credit for any permanent repayments of any such Indebtedness existing in so incurred), determined as of the date of such incurrence (and after giving pro forma effect to such proposed incurrence), shall not exceed 5% of the Total Consolidated Assets of the Company and its Restricted Subsidiaries as of the last day of the fiscal quarter or relating fiscal year immediately preceding such date of incurrence for which financial statements are required to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject be delivered to the limitations set forth in Administrative Agent and the Lenders pursuant to Section 8.01(z6.01 (it being acknowledged and agreed that no Default shall be deemed to have occurred if the aggregate amount of all such Indebtedness incurred under this subsection (f) shall at a later time exceed 5% of the Total Consolidated Assets of the Company and its Restricted Subsidiaries so long as at the time of each such incurrence each such incurrence was permitted to be made under this subsection (f));
(g) other unsecured Indebtedness as long as of the Company and its Restricted Subsidiaries; provided that (i) at the time of incurrence thereof, no Default has occurred and is continuing or would result from the incurrence of such Indebtedness immediately following the incurrence of such Indebtedness; (ii) immediately before and immediately after giving pro forma effect thereto to the Borrower is incurrence of such Indebtedness (A) the Company and its Restricted Subsidiaries shall be in compliance with each of the financial covenant covenants contained in Section 8.11 on a Pro Forma Basis7.12, subject and (B) the Consolidated Net Leverage Ratio shall not be greater than 3.50 to 1.00; (iii) such Indebtedness (other than commercial paper and any related commercial paper backup facility) shall not be scheduled to mature prior to the limitations set forth date that is ninety (90) days after the Scheduled Maturity Date and shall not have a weighted average life to maturity (as reasonably determined by the Administrative Agent in accordance with customary financial practice) that is shorter than the remaining term of the Commitments; and (iv) no Subsidiary of the Company other than a Loan Party shall be obligated, either primarily or as a guarantor or otherwise, with respect to such Indebtedness;
(h) Indebtedness (including Permitted Receivables Financings) of any Restricted Subsidiary that is a Foreign Subsidiary (other than a Foreign Subsidiary described in clause (c) of the definition of such term) in an aggregate principal amount at the time of incurrence that, when combined with all other Indebtedness incurred previously pursuant to this subsection (h) (and after giving credit for any permanent repayments of any such Indebtedness so incurred), determined as of the date of such incurrence (and after giving pro forma effect to such proposed incurrence), shall not exceed 6.0% of the Total Consolidated Assets of the Company and its Restricted Subsidiaries as of the last day of the fiscal quarter or fiscal year immediately preceding such date of incurrence for which financial statements are required to be delivered to the Administrative Agent and the Lenders pursuant to Section 6.01 (it being acknowledged and agreed that no Default shall be deemed to have occurred if the aggregate amount of all such Indebtedness incurred under this subsection (h) shall at a later time exceed 6% of the Total Consolidated Assets of the Company and its Restricted Subsidiaries so long as at the time of each such incurrence each such incurrence was permitted to be made under this subsection (h)); provided that, after a Loan Party consummates a Qualifying Permitted Acquisition, such percentage shall be increased from 6% to 8.5% for the six-month period beginning on the date on which such Qualifying Permitted Acquisition occurs and Total Consolidated Assets shall be determined giving pro forma effect to any such Qualifying Permitted Acquisition;
(i) Indebtedness of any Limited Subsidiary; provided that (i) at the time of incurrence thereof, no Default has occurred and is continuing or would result the incurrence of such Indebtedness; (ii) immediately before and immediately after giving pro forma effect to such Indebtedness the Company and its Restricted Subsidiaries shall be in compliance with each of the financial covenants contained in Section 8.017.12; and (iii) neither the Company nor any Subsidiary of the Company, other than a Limited Subsidiary, shall be obligated, either primarily or as a guarantor or otherwise, with respect to such Indebtedness;
(j) additional Indebtedness in an aggregate principal amount not to exceed $100,000,000 at any time outstanding;
(k) Indebtedness under or in respect of Cash Management Agreements;
(l) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or other similar instrument drawn against insufficient funds in the ordinary course of business;
(m) Indebtedness under performance bonds, surety bonds, release, appeal and similar bonds, statutory obligations or with respect to workers’ compensation claims, in each case incurred in the ordinary course of business, and reimbursement obligations in respect of any of the foregoing (including in respect of letters of credit issued in support of any of the foregoing);
(n) 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 any Loan Party or its Subsidiaries to purchase or redeem Equity Interests of the Company permitted pursuant to Section 7.06(e);
(o) Indebtedness arising from agreements providing for indemnification or purchase price adjustments, in each case, incurred or assumed in connection with Investments permitted by or under Section 7.02(f)(ii), (g), or (h) or the Disposition of any assets permitted by Section 7.04 or 7.05;
(p) Indebtedness (i) incurred to finance insurance premiums or (ii) resulting from take-or-pay obligations contained in supply agreements, in each case, in the ordinary course of business;
(q) Indebtedness in respect of Permitted Receivables Financings of the Company and/or its Domestic Subsidiaries so long as (i) the aggregate outstanding amount of all Permitted Receivables Financings shall not exceed $500,000,000 at any time, and (ii) no such Indebtedness is in the form of a term loan facility; and
(hr) Guarantees Indebtedness in respect of any capital lease incurred in connection with respect to Indebtedness permitted under this Section 8.03a Tax Incentive Program.
Appears in 1 contract
Indebtedness. CreateThe Credit Parties will not, nor will they permit any Subsidiary to, contract, create, incur, assume or suffer permit to exist any Indebtedness, except:
(a) Indebtedness arising or existing under this Note Purchase Agreement and the Loan other Note Purchase Documents;
(b) Indebtedness (excluding the Senior Obligations) existing as of the Closing Date as set forth on Schedule 8.03 (6.1(b) and any renewals, refinancings and or extensions thereof)thereof in a principal amount not in excess of that outstanding as of the date of such renewal, refinancing or extension;
(c) Indebtedness incurred after the Closing Date consisting of Capital Leases or Indebtedness incurred to provide all or a portion of the purchase price or cost of construction of an asset; provided that (i) such Indebtedness when incurred shall not exceed the amount purchase price or cost of construction of such asset; (ii) no such Indebtedness is not increased shall be refinanced for a principal amount in excess of the principal balance outstanding thereon at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder ; and (iiiii) the terms relating to principal amount, amortization, maturity, collateral total amount of all such Indebtedness (if any) and subordination (if any), and other material terms taken as a whole, of excluding any such refinancing, renewal or extension are no less favorable in any material respect Indebtedness consisting of a Sale-Leaseback Transaction permitted under Section 6.12 to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable extent such lease is deemed to any such refinancing, refunding, renewing or extending Indebtedness does be a Capital Lease) shall not exceed the then applicable market interest rate;
(c) intercompany Indebtedness among the Borrower and its Subsidiaries$2,500,000 at any time outstanding;
(d) Indebtedness and obligations (contingent or otherwise) owing under Hedging Agreements entered into in order to manage existing or arising under any Swap Contract, provided that (i) such obligations are (anticipated interest rate or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating exchange rate risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting partyspeculative purposes;
(e) purchase money Indebtedness, subject Indebtedness owed from a Credit Party to the limitations set forth in Section 8.01(ianother Credit Party (other than Holdings);
(f) Indebtedness existing in or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z)Senior Debt;
(g) other Guaranty Obligations in respect of Indebtedness as long as after giving effect thereto of the Borrower is in compliance with the financial covenant in Section 8.11 on or a Pro Forma Basis, subject Subsidiary to the limitations set forth extent such Indebtedness is permitted to exist or be incurred pursuant to this Section 6.1, in each case to the extent the related Investment made by the provider of such Guaranty Obligation is permitted under Section 8.016.5; and
(h) Guarantees with respect to other unsecured Indebtedness of Credit Parties which does not exceed $5,000,000 in the aggregate at any time outstanding; provided, however, that the Indebtedness permitted under pursuant to this clause (h) shall not exceed $2,000,000 in the aggregate at any time outstanding unless, as of the date of such incurrence, after giving effect to the incurrence of any such Indebtedness on a Pro Forma Basis as of the end of the most recently ended fiscal quarter for which the Borrower has delivered the required financial statements pursuant to Section 8.035.1(b) and a compliance certificate pursuant to Section 5.2(b), the Consolidated Leverage Ratio does not exceed the Incurrence Ratio.
Appears in 1 contract
Samples: Note Purchase Agreement (Bravo Brio Restaurant Group, Inc.)
Indebtedness. CreateContract, create, incur, assume or suffer permit to exist any Indebtedness, except:
(a) Indebtedness arising or existing under this Credit Agreement and the Loan other Credit Documents;
(b) the Subordinated Debt, provided that such Indebtedness is subordinated on terms and conditions satisfactory to the Agent;
(c) Indebtedness set forth on in Schedule 8.03 (8.1, and renewals, refinancings and extensions thereof); thereof on terms and conditions no less favorable than for such existing Indebtedness;
(d) Capital Lease Obligations and Indebtedness incurred, in each case, to provide all or a portion of the purchase price or costs of construction of an asset, provided that (i) such Indebtedness when incurred shall not exceed the amount purchase price or cost of construction of such asset, (ii) no such Indebtedness is not increased shall be refinanced for a principal amount in excess of the principal balance outstanding thereon at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (iiiii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, total amount of any all such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does shall not exceed the then applicable market interest rate$5,000,000 at any time outstanding;
(ce) intercompany Indebtedness among and obligations of the Borrower and its Subsidiaries;
(d) obligations (contingent or otherwise) existing or arising under any Swap Contract, provided that (i) such obligations are (or were) in respect of Hedging Agreements entered into by such Person in the ordinary course of business for the purpose of directly mitigating to manage existing or anticipated risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market viewspeculative purposes;”
(i) unsecured intercompany Indebtedness owing by one Credit Party to another Credit Party and (ii) such Swap Contract does unsecured intercompany Indebtedness owing by a Credit Party to a Subsidiary of the Borrower which is not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions a Credit Party, in each case to the defaulting party;
(e) purchase money Indebtedness, subject to the limitations set forth in extent permitted under Section 8.01(i);
(f) Indebtedness existing in or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z)8.5 hereof;
(g) following the payment in full of the Bridge Loans or NationsBridge Term Loans with proceeds from the Permanent Securities, other unsecured Indebtedness as long as after giving effect thereto of the Borrower is of up to $3,000,000 in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01aggregate at any time outstanding; and
(h) Guarantees with respect to Guaranty Obligations of Indebtedness permitted under this Section 8.038.1.
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;; 92
(b) Guarantees of the Borrower or any Subsidiary in respect of Indebtedness set forth on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) otherwise permitted hereunder of the amount of such Indebtedness is not increased at the time of such refinancing, renewal Borrower or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rateSubsidiary;
(c) intercompany Indebtedness among the Borrower and its Subsidiaries;
(d) obligations (contingent or otherwise) of the Borrower or any Subsidiary existing or arising under any Swap Contract, ; provided that (i) such obligations are (or were) entered into by such Person either (A) in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” ”, or (B) to effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to another floating rate or otherwise) with respect to any interest-bearing liability or investment of the Borrower or any Subsidiary; and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(d) unsecured Indebtedness incurred in connection with Permitted Acquisitions or Dispositions;
(e) Indebtedness in respect of capital leases, Synthetic Lease Obligations and purchase money Indebtedness, subject to obligations for fixed or capital assets within the limitations set forth in Section 8.01(i7.01(h); provided that the aggregate amount of all such Indebtedness at any one time outstanding shall not exceed $35,000,000 with respect to any other such Indebtedness;
(f) Indebtedness existing in or relating of (i) the Borrower owed to real estate acquired by any Subsidiary and (ii) a Loan Party Subsidiary of the Borrower owed to the Borrower or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to of the limitations set forth in Borrower which is permitted under the provisions of Section 8.01(z)7.02;
(g) Indebtedness of a Person existing at the time such Person became a Subsidiary of any Loan Party, together with all Indebtedness assumed by the Borrower or any of its Subsidiaries in connection with such Investment permitted under Section 7.02, and refinancing, refundings, renewals or extensions of such Indebtedness but only to the extent that (i) such Indebtedness was not created or incurred in contemplation of such Person becoming a Subsidiary of such Loan Party and (ii) any Liens securing such Indebtedness attach only to the assets of the Person;
(h) Indebtedness outstanding on the date hereof and listed on Schedule 7.03 and any refinancing, refundings, renewals or extensions thereof; provided that the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder;
(i) Indebtedness of the Borrower or any Subsidiary in respect of performance, bid, surety, indemnity, appeal bonds, completion guarantees and other obligations of like nature and guarantees and/or obligations as long as an account party in respect of the face amount of letters of credit in respect thereof, in each case securing obligations not constituting Indebtedness for borrowed money (including worker’s compensation claims, environmental remediation and other 93 environmental matters and obligations in connection with self-insurance or similar requirements) provided in the ordinary course of business;
(j) Indebtedness arising from the endorsement of instruments in the ordinary course of business;
(k) Indebtedness in the form of customary obligations under indemnification, incentive, non-compete, consulting, deferred compensation, earn-out or other similar arrangements;
(l) unsecured Indebtedness in the form of commercial paper not to exceed the amount of the Commitments; provided that (i) after giving pro forma effect thereto to the incurrence of such Indebtedness, the Borrower is shall be in compliance with each of the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations covenants set forth in Section 8.017.11 (without giving effect to the proviso set forth in Section 7.11(b) regarding the TAOS Judgment) as of the date of the most recent financial statements delivered pursuant to Section 6.01(a) or (b) and (ii) no Default or Event of Default shall have occurred and be continuing or would result from the incurrence of such Indebtedness; and
(hm) Guarantees with respect other Indebtedness in an aggregate principal amount not to Indebtedness permitted under this Section 8.03exceed $75,000,000 at any time outstanding.
Appears in 1 contract
Samples: Credit Agreement (Intersil Corp/De)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness set forth outstanding on the date hereof listed on Schedule 8.03 (7.03 and renewalsany renewal or replacement thereof, refinancings and extensions thereof); provided that (i) so long as such renewal or replacement does not increase the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rateIndebtedness;
(c) intercompany Indebtedness among the Borrower and its Subsidiaries;
(d) obligations (contingent or otherwise) of the Company or any Subsidiary existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(ed) Indebtedness in respect of capital leases, Synthetic Lease Obligations and purchase money Indebtedness, subject to obligations for fixed or capital assets within the limitations set forth in the proviso to Section 8.01(i7.01(i);
(e) Indebtedness of Subsidiaries in an aggregate principal amount not to exceed $750,000,000 at any time outstanding;
(f) any Guarantee by the Company of Indebtedness existing in or relating to real estate acquired of any Subsidiary permitted by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in this Section 8.01(z)7.03;
(g) Indebtedness under Permitted Securitization Facilities;
(h) Indebtedness of a Person, or in respect of assets, acquired and existing at the time of such Acquisition; provided that (I) such Indebtedness (x) shall not have been incurred in contemplation of such Acquisition, (y) may not be extended, renewed or refunded except as otherwise permitted by this Agreement, and (z) in the case of Indebtedness secured by a Lien on the assets acquired pursuant to any such Acquisition (or on the assets of a Person that becomes a Subsidiary as a result of such Acquisition), such Indebtedness, together with any other secured Indebtedness permitted by this clause (h), shall not exceed $50,000,000 in the aggregate outstanding at any time and (II) neither the Company nor any Subsidiary (other than a Person acquired as long as after giving effect thereto the Borrower part of such Acquisition) is in compliance directly or indirectly liable for such Indebtedness, whether through any Guarantee or otherwise, other than liability with the financial covenant in Section 8.11 on a Pro Forma Basis, subject respect to which recourse is limited to the limitations set forth in Section 8.01assets so acquired;
(i) unsecured Indebtedness of the Company; and
(hj) Guarantees with respect Indebtedness owed by any Subsidiary to Indebtedness permitted under this Section 8.03the Company or any other Subsidiary (“Inter-Company Indebtedness”).
Appears in 1 contract
Samples: Credit Agreement (Avnet Inc)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness set forth on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;
(c) intercompany Indebtedness among the Borrower and its Subsidiaries;
(d) obligations (contingent or otherwise) existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, fluctuations in interest rates or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” foreign exchange rates and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(b) Indebtedness evidenced by the Senior Secured Notes not to exceed $200,000,000 in principal amount.
(c) Indebtedness of a Subsidiary of the Borrower owed to the Borrower or a wholly-owned Subsidiary of the Borrower, which Indebtedness shall (i) in the case of Indebtedness owed to a Loan Party, constitute “Pledged Debt” under the Security Agreement, (ii) be subordinated to the Obligations on terms reasonably acceptable to the Administrative Agent (it being agreed that such Indebtedness shall in any event permit repayment at any time so long as an Event of Default has not occurred and is continuing) and (iii) be otherwise permitted under the provisions of Section 7.03;
(d) Indebtedness under the Loan Documents;
(e) Indebtedness outstanding on the date hereof and listed on Schedule 7.02 and any Permitted Refinancing Indebtedness in respect of such Indebtedness;
(f) Guarantees of the Borrower or any Guarantor in respect of Indebtedness otherwise permitted hereunder of the Borrower or any other Guarantor;
(g) Indebtedness in respect of Capitalized Leases, Synthetic Lease Obligations and purchase money Indebtednessobligations for fixed or capital assets, subject to including furniture, fixtures and equipment within the limitations set forth in Section 8.01(i7.01(i); provided, however, that the aggregate amount of all such Indebtedness at any one time outstanding shall not exceed $5,000,000;
(fh) Indebtedness of any Person that becomes a direct or indirect wholly-owned Subsidiary of Borrower as a result of an Investment permitted by Section 7.03 may remain liable with respect to Indebtedness existing on the date of such acquisition; provided that such Indebtedness is not created in or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or anticipation of such Investment and is not in connection with its usual operations, subject to excess of $5,000,000 in the limitations set forth aggregate at any time outstanding and (b) Permitted Refinancing Indebtedness in Section 8.01(z)respect of any such Indebtedness;
(gi) other Indebtedness as long as after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basisunsecured, subject and to the limitations set forth extent such Liens are permitted by Section 7.01(p), secured, Indebtedness in Section 8.01an aggregate principal amount not to exceed $5,000,000 at any time outstanding; and
(hj) Guarantees with for the period from the Closing Date thorough August 1, 2011, Indebtedness of Eldorado Shreveport Joint Venture and Shreveport Capital Corp. in respect of the Existing First Mortgage Bonds in an aggregate principal amount not to Indebtedness permitted under this exceed $9,240,000 (reduced by any principal payments from time to time made thereon); provided that all such outstanding Existing First Mortgage Bonds have been called or notified for redemption or other termination as provided in Section 8.034.01(a)(xxiii).
Appears in 1 contract
Samples: Credit Agreement (NGA Holdco, LLC)
Indebtedness. Create, incur, assume or suffer to exist any IndebtednessIndebtedness of any Subsidiary of the Borrower, except:
(a) Indebtedness under outstanding on the Loan Documents;
(b) Indebtedness set forth date hereof and listed on Schedule 8.03 (7.02 and any refinancings, refundings, renewals, refinancings and replacements or extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal refunding, renewal, replacement or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing the foregoing and by an amount equal to any existing commitments unutilized thereunder and thereunder;
(iib) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, Guarantees in respect of Indebtedness otherwise permitted hereunder of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rateother Subsidiary;
(c) intercompany Indebtedness among the Borrower and its Subsidiaries;
(d) obligations (contingent or otherwise) of any Subsidiary existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view”;” and
(d) Other Indebtedness that is either unsecured or secured by Liens that are otherwise permitted by Section 7.01(l), so long as the aggregate principal amount of Indebtedness incurred pursuant to this clause (d), when combined (without duplication) with the aggregate principal amount of Indebtedness secured by Liens permitted by Section 7.01(l), does not at any time exceed the Maximum Priority Debt Limit; provided that the Maximum Priority Debt Limit may be exceeded pursuant to this subsection (i) at any time if such amount were satisfied at the date of incurrence but the Maximum Priority Debt Limit later decreased as a result of a decrease in Consolidated Total Assets or (ii) at the time of any refinancing, refunding, renewal, replacement or extension of any Indebtedness that was incurred at a time when the Maximum Priority Debt Limit was satisfied so long as the aggregate principal amount of such Swap Contract refinancing, refunding, renewal, replacement or extension does not contain any provision exonerating exceed the non-defaulting party from its obligation amount then outstanding except by an amount equal to make payments on outstanding transactions to a premium or other amount paid, and accrued and unpaid interest, and fees and expenses incurred in connection with the defaulting partyforegoing;
(e) purchase money IndebtednessIndebtedness of a Person existing at the time such Person became a Subsidiary and not created in contemplation thereof, subject and any refinancing, refunding, renewal, replacement or extension of the foregoing, so long as the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal, replacement or extension except by an amount equal to a premium or other amount paid, and accrued and unpaid interest, and fees and expenses incurred, in connection with the limitations set forth in Section 8.01(i);foregoing and by an amount equal to any existing commitments unutilized thereunder; and
(f) Indebtedness existing in incurred to finance the acquisition, construction, repair, replacement or relating to real estate acquired by a Loan Party improvement of any fixed or a Subsidiary for transmissioncapital assets, distribution or right-of-way purposes or including Indebtedness assumed in connection with its usual operations, subject the acquisition of any such assets or secured by a Lien on any such assets prior to the limitations set forth in Section 8.01(z);
(g) other acquisition thereof; provided that such Indebtedness as long as is incurred prior to or within 180 days after giving effect thereto such acquisition or the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basiscompletion of such construction, subject to the limitations set forth in Section 8.01; and
(h) Guarantees with respect to Indebtedness permitted under this Section 8.03repair, replacement or improvement.
Appears in 1 contract
Samples: Credit Agreement (Qualcomm Inc/De)
Indebtedness. CreateHoldings will not, and will not permit any of its Subsidiaries to, contract, create, incur, assume or suffer to exist any IndebtednessIndebtedness of Holdings or any of its Subsidiaries, except:
(a) Indebtedness incurred under this Agreement and the other Loan Documents;
(b) the Indebtedness set forth on Schedule 8.03 (7.04, and renewalsany refinancing, refinancings and extensions extension, renewal or refunding of any such Indebtedness not involving an increase in the principal amount thereof); provided that ;
(i) the amount Indebtedness consisting of such Capital Lease Obligations of Holdings and its Subsidiaries, (ii) Indebtedness is not increased at the time of such secured by a Lien referred to in Section 7.03(c), and (iii) any refinancing, extension, renewal or extension except by refunding of any such Indebtedness not involving an increase in the principal amount equal to a reasonable premium or other reasonable thereof, provided the aggregate outstanding principal amount paid, and fees and expenses reasonably incurred, (using Capitalized Lease Obligations in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to lieu of principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, in the case of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms Capital Lease) of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;
permitted by this subpart (c) intercompany Indebtedness among the Borrower and its Subsidiariesshall not exceed $100,000 at any time;
(d) obligations any intercompany loans (contingent i) made by Holdings or otherwiseany Subsidiary of Holdings to any Credit Party; or (ii) existing or arising made by any Foreign Subsidiary of Holdings to any other Foreign Subsidiary of Holdings;
(e) Indebtedness of Holdings and its Subsidiaries under Hedge Agreements, provided such Hedge Agreements have been entered into in the ordinary course of business and not for speculative purposes;
(f) Indebtedness constituting Guaranty Obligations permitted by Section 7.05; and
(g) other Indebtedness of the Credit Parties to the extent not permitted by any Swap Contractof the foregoing subparts, provided that (i) all such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilitiesIndebtedness constitutes Subordinated Indebtedness, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) no Default or Event of Default shall then exist or immediately after incurring any of such Swap Contract does not contain any provision exonerating Indebtedness will exist, (iii) the non-defaulting party from its obligation documentation with respect to make payments on outstanding transactions such Indebtedness shall be in form and substance satisfactory to the defaulting party;
Lender, and (eiv) purchase money Indebtedness, subject to the limitations set forth in Section 8.01(i);
(f) Indebtedness existing in or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with Holdings and its usual operations, subject to the limitations set forth in Section 8.01(z);
(g) other Indebtedness as long as after giving effect thereto the Borrower is Subsidiaries shall be in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations covenants set forth in Section 8.01; and
(h) Guarantees with respect 7.07 both immediately before and after giving pro forma effect to Indebtedness permitted under this Section 8.03the incurrence of such Indebtedness.
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
: (a) Indebtedness under the Loan Documents;
; (b) Indebtedness set forth on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries existing on the Closing Date and set forth in Schedule 7.03 (and renewals, refinancings, and extensions thereof which do not increase the principal amount thereof and are otherwise on terms and conditions satisfactory to the Administrative Agent in its sole discretion); (c) purchase money Indebtedness (including obligations in respect of Capital Leases but excluding Synthetic Leases) hereafter incurred by the Loan Parties or any of their Subsidiaries to finance the Lenders than the terms purchase of any agreement or instrument governing the fixed assets, provided that (i) such Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does when incurred shall not exceed the then applicable market interest rate;
purchase price of the asset(s) financed, (cii) intercompany no such Indebtedness among shall be refinanced for a principal amount in excess of the Borrower principal balance outstanding thereon at the time of such refinancing and its Subsidiaries;
(iii) the total amount of all such Indebtedness at any time outstanding shall not exceed $500,000; (d) obligations (contingent or otherwise) of any Loan Party or any Subsidiary existing or arising under any Swap Contract, Hedge Agreement (including any Secured Hedge Agreement); provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract Hedge Agreement does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
; (e) purchase money intercompany Indebtedness permitted under Section 7.02 (h); provided that in the case of the intercompany Indebtedness permitted pursuant to Section 7.02(h)(i) , such intercompany Indebtedness is evidenced by a demand note (which may cover all such intercompany Indebtedness, subject ) in form and substance satisfactory to the limitations set forth Administrative Agent and pledged and delivered to the Administrative Agent pursuant to the Security Agreement as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations in Section 8.01(i);
a manner satisfactory to the Administrative Agent; (f) Subordinated Indebtedness existing in or relating an amount not to real estate acquired exceed $1,000,000 (excluding the New Seller Notes permitted in subsection (h) below) at any time outstanding; provided that such Subordinated Indebtedness (i) has a maturity date that is not earlier than the six (6) month anniversary of the Term Loan Maturity Date and (ii) by a Loan Party or a Subsidiary for transmissionits terms, distribution or right-of-way purposes or in connection with its usual operations, subject does not require amortization payments prior to the limitations set forth in Section 8.01(z);
maturity thereof; (g) other Indebtedness as long as after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01; and
(h) Guarantees with respect to Indebtedness permitted under this Section 8.037.03 ; (h) Indebtedness under the New Seller Notes, provided, that, at the time of the issuance of such New Seller Notes, and immediately after giving effect thereto, (i) no Default or Event of Default is outstanding or would occur as a result of the issuance thereof and (ii) such New Seller Notes are subordinate to the Obligations, pursuant to terms and conditions satisfactory to Administrative Agent. Notwithstanding anything to the contrary set forth in this subsection (h), Borrowers may issue New Seller Notes in connection with any Earnout Payment so long as such New Seller Notes are Qualified Seller Notes; (i) Indebtedness of any Person that becomes a Subsidiary after the Closing Date (renewals, refinancings, and extensions thereof which do not increase the principal amount thereof), provided that (i) 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 (ii) the aggregate principal amount of Indebtedness permitted by this subsection shall not exceed $250,000 at any time outstanding; and (j) other unsecured Indebtedness (not otherwise covered by (a) through (i) above) in an aggregate principal amount not exceeding $250,000 at any time outstanding.
Appears in 1 contract
Samples: Credit and Guaranty Agreement
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness of the Borrower and its Subsidiaries set forth on in Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate8.03;
(c) intercompany Indebtedness among the Borrower and its Subsidiariespermitted under Section 8.02;
(d) obligations (contingent or otherwise) of the Borrower or any Subsidiary existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;; and
(e) purchase money IndebtednessIndebtedness (including obligations in respect of Capital Leases or Synthetic Leases) hereafter incurred by the Borrower or any of its Subsidiaries to finance the purchase of fixed assets, subject to and renewals, refinancings and extensions thereof, provided that (i) the limitations set forth total of all such Indebtedness for all such Persons taken together shall not exceed an aggregate principal amount of $8,000,000 at any one time outstanding; (ii) such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed; and (iii) no such Indebtedness shall be refinanced for a principal amount in Section 8.01(i)excess of the principal balance outstanding thereon at the time of such refinancing;
(f) Earn Out Obligations with respect to Permitted Acquisitions and unsecured Indebtedness existing in or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to consisting of the limitations set forth in Section 8.01(z)deferred purchase price of Permitted Acquisitions;
(g) other Indebtedness as long as after giving effect thereto credit card debt incurred by or on behalf of the Borrower’s directors, officers, employees or agents in connection with their duties on behalf of the Borrower is in compliance the ordinary course of business, provided that the aggregate outstanding amount of all such credit card debt shall not exceed $3,000,000 in the aggregate at any one time outstanding;
(h) Indebtedness of the Borrower arising under performance bonds, bid bonds, appeal bonds, surety bonds, banker’s acceptances and trade-related letters of credit, in each case in the ordinary course of business and not in connection with Indebtedness for borrowed money;
(i) unsecured Subordinated Indebtedness not to exceed $5,000,000 in the aggregate at any one time outstanding;
(j) Indebtedness incurred in connection with the financial covenant financing of insurance premiums in Section 8.11 on a Pro Forma Basisan amount not to exceed the annual premiums in respect thereof at any one time outstanding;
(k) Guarantees in respect of Indebtedness otherwise permitted hereunder; provided, subject that, if the Indebtedness being Guaranteed is subordinated to the limitations set forth Obligations, such Guarantee shall be subordinated to the Guarantee of the Obligations on terms at least as favorable to the Lenders as those contained in the subordination of such Indebtedness;
(l) to the extent constituting Indebtedness, obligations incurred by the Borrower or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, in connection with Permitted Acquisitions, Permitted Transfers or Dispositions permitted by Section 8.018.05; provided that, in respect of any obligations incurred pursuant to agreements providing for indemnification in connection with Permitted Transfers or Dispositions permitted by Section 8.05, such Indebtedness shall not exceed the amount of Net Cash Proceeds received from such Dispositions or such Permitted Transfers, as the case may be;
(m) Indebtedness of the Borrower under the Square 1 Bank Canadian Dollar Letter of Credit in an aggregate amount not to exceed CAN$750,000;
(n) Indebtedness of the Borrower under one or more standby letters of credit issued by Bank of America in an aggregate amount not exceeding CAN$1,000,000 at any one time outstanding; and
(ho) Guarantees with respect additional unsecured Indebtedness in a principal amount not to Indebtedness permitted under this Section 8.03exceed $1,000,000 in the aggregate at any one time outstanding.
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness of the Borrower and its Subsidiaries set forth on in Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate8.03;
(c) intercompany Indebtedness among the Borrower and its Subsidiariespermitted under Section 8.02;
(d) obligations (contingent or otherwise) of the Borrower or any Subsidiary existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) purchase money IndebtednessIndebtedness (including obligations in respect of Capital Leases or Synthetic Leases) hereafter incurred by the Borrower or any of its Subsidiaries to finance the purchase of fixed assets, subject to and renewals, refinancings and extensions thereof, provided that (i) the limitations set forth total of all such Indebtedness for all such Persons taken together shall not exceed an aggregate principal amount of $2,500,000 at any one time outstanding; (ii) such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed; and (iii) no such Indebtedness shall be refinanced for a principal amount in Section 8.01(i)excess of the principal balance outstanding thereon at the time of such refinancing;
(f) unsecured Indebtedness existing of the Borrower and its Subsidiaries incurred after the Closing Date in or relating an aggregate principal amount not to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z);exceed $5,000,000 at any one time outstanding; and
(g) any other Indebtedness as long as after giving effect thereto consented to in writing by the Borrower is Required Lenders in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01; and
(h) Guarantees with respect to Indebtedness permitted under this Section 8.03their sole discretion.
Appears in 1 contract
Samples: Credit Agreement (Ebix Inc)
Indebtedness. Create, issue, incur, assume assume, become liable in ------------ respect of or suffer to exist any Indebtedness, except:
(a) Indebtedness under the of any Loan DocumentsParty pursuant to any Loan Document;
(b) Indebtedness set forth on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) of the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal Borrower to any existing commitments unutilized thereunder Subsidiary and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect Wholly Owned Subsidiary Guarantor to the Loan Parties and their Subsidiaries Borrower or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rateother Subsidiary;
(c) intercompany Indebtedness among the Borrower and its Subsidiaries;
(d) obligations (contingent or otherwise) existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person Guarantee Obligations incurred in the ordinary course of business for by the purpose Borrower or any of directly mitigating risks associated with liabilitiesits Subsidiaries of obligations of any Wholly Owned Subsidiary Guarantor;
(d) Indebtedness outstanding on the date hereof and listed on Schedule 7.2(d) and any refinancings, commitmentsrefundings, investments, assetsrenewals or extensions thereof (without increasing, or property held or reasonably anticipated by such Personshortening the maturity of, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting partyprincipal amount thereof);
(e) purchase money IndebtednessIndebtedness (including, subject without limitation, Capital Lease Obligations) secured by Liens permitted by Section 7.3(g) in an aggregate principal amount not to the limitations set forth in Section 8.01(i)exceed $18,000,000 at any one time outstanding;
(f) Hedge Agreements in respect of Indebtedness existing in or relating to real estate acquired by otherwise permitted hereby that bears interest at a Loan Party or a Subsidiary floating rate, so long as such agreements are not entered into for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z)speculative purposes;
(g) other Indebtedness as long as after giving effect thereto the Borrower is incurred in compliance connection with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01senior discount notes being arranged by CSI; and
(h) Guarantees Indebtedness (including, without limitation, Capital Lease Obligations) the proceeds of which are used solely to purchase computer, communications, routers, servers, switches and related installation and/or maintenance agreements, if any, to be used in connection with respect Borrower's performance of netsourcing services to Borrower's customers, now or hereafter existing, pursuant to Customer Contracts, provided that such -------- equipment is acquired for customer specific purposes. The Indebtedness permitted under in this Section 8.037.2(h) shall include indebtedness the proceeds of which are used to purchase equipment not used exclusively for any particular customer but dedicated to multiple customers as part of such netsourcing services.
Appears in 1 contract
Samples: Credit Agreement (Intira Corp)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan DocumentsDocuments and under the Existing Credit Agreement and the Existing Target Notes;
(b) Indebtedness set forth outstanding on the date hereof listed on Schedule 8.03 (7.03 and renewalsany renewal or replacement thereof, refinancings and extensions thereof); provided that (i) so long as such renewal or replacement does not increase the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rateIndebtedness;
(c) intercompany Indebtedness among the Borrower and its Subsidiaries;
(d) obligations (contingent or otherwise) of the Borrower or any Subsidiary existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(ed) Indebtedness in respect of capital leases, Synthetic Lease Obligations and purchase money Indebtedness, subject to obligations for fixed or capital assets within the limitations set forth in the proviso to Section 8.01(i7.01(i);
(e) Indebtedness of Subsidiaries in an aggregate principal amount not to exceed $500,000,000 at any time outstanding;
(f) any Guarantee by the Borrower of Indebtedness existing in or relating to real estate acquired of any Subsidiary permitted by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in this Section 8.01(z)7.03;
(g) other Indebtedness as long as after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01under Permitted Securitization Facilities; andNYDOCS03/1048584.774
(h) Guarantees Indebtedness of a Person, or in respect of assets, acquired pursuant to a Permitted Acquisition and existing at the time of such Acquisition; provided that (I) such Indebtedness (x) shall not have been incurred in contemplation of such Acquisition, (y) may not be extended, renewed or refunded except as otherwise permitted by this Agreement, and (z) in the case of Indebtedness secured by a Lien on the assets acquired pursuant to a Permitted Acquisition (or on the assets of a Person that becomes a Subsidiary as a result of a Permitted Acquisition), such Indebtedness, together with any other secured Indebtedness permitted by this clause (h), shall not exceed $50,000,000 in the aggregate outstanding at any time and (II) neither the Borrower nor any Subsidiary (other than a Person acquired as part of such Permitted Acquisition) is directly or indirectly liable for such Indebtedness, whether through any Guarantee or otherwise, other than liability with respect to which recourse is limited to the assets so acquired;
(i) unsecured Indebtedness permitted under this Section 8.03of the Borrower;
(j) Indebtedness owed by any Subsidiary to the Borrower or any other Subsidiary (“Inter-Company Indebtedness”);
(k) Indebtedness of the Borrower or any Subsidiary in respect of a Qualifying Term Loan Facility in an aggregate principal amount not to exceed $700,000,000.
Appears in 1 contract
Samples: Senior Unsecured Bridge Credit Agreement (Avnet Inc)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness set forth outstanding on the date hereof and listed on Schedule 8.03 (7.03 and renewalsany refinancings, refinancings and refundings, renewals or extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest ratethereunder;
(c) intercompany Indebtedness among Guarantees of the Borrower and its Subsidiariesor any Subsidiary in respect of Indebtedness otherwise permitted hereunder of any Loan Party;
(d) obligations (contingent or otherwise) of the Borrower or any Subsidiary existing or arising under any Swap Contract, ; provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “"market view;” " and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) purchase money Indebtednessconsolidating inter-company Indebtedness among the Borrower and its Subsidiaries, subject but in the case of Indebtedness of any Non-Guarantor Subsidiary, only to the limitations set forth in extent permitted by Section 8.01(i)7.02;
(f) Indebtedness existing in not expressly permitted by clauses (a) through (e) above that is secured by Liens permitted by Section 7.01(k); provided that the aggregate outstanding principal amount of all such Indebtedness, when combined (without duplication) with the aggregate outstanding principal amount of all Indebtedness incurred pursuant to clause (g) of this Section 7.03, does not exceed 15% of Consolidated Total Assets at the time such Indebtedness is created, incurred or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z)assumed;
(g) other unsecured Indebtedness as long as after giving effect thereto of Subsidiaries; provided that the Borrower is in compliance aggregate outstanding principal amount of all such Indebtedness, when combined (without duplication) with the financial covenant in aggregate outstanding principal amount of all Indebtedness permitted by clause (f) of this Section 8.11 on a Pro Forma Basis7.03, subject to does not at any time exceed 15% of Consolidated Total Assets at the limitations set forth in Section 8.01time such Indebtedness is created, incurred or assumed; and
(h) Guarantees other unsecured Indebtedness; provided that at the time such Indebtedness is created, incurred or assumed, (i) no Default shall exist or would result from the creation, incurrence, or assumption of such Indebtedness and (ii) immediately before and immediately after giving Pro Forma Effect to the creation, incurrence, or assumption of such Indebtedness, the Borrower and its Subsidiaries shall be in Pro Forma Compliance with respect to Indebtedness permitted under this all of the covenants set forth in Section 8.037.11.
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness set forth on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rateSenior Notes Indebtedness;
(c) intercompany Indebtedness among the Borrower and its Subsidiariesin respect of Permitted Standalone Letters of Credit;
(d) Indebtedness outstanding on the date hereof and listed on Schedule 7.03 and any Permitted Refinancing thereof;
(e) (i) Guarantees of the Company or any Loan Party in respect of Indebtedness otherwise permitted hereunder of the Company or any other Loan Party and (ii) Guarantees of any Restricted Subsidiary that is not a Loan Party in respect of Indebtedness otherwise permitted hereunder of any other Restricted Subsidiary that is not a Loan Party;
(f) obligations (contingent or otherwise) of the Company or any Restricted Subsidiary existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” speculation; and (ii) in the case of any Secured Hedge Agreement, such Swap Contract 119889268 does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(eg) (i) Indebtedness in respect of capital leases, Synthetic Lease Obligations and purchase money Indebtedness, subject to obligations for fixed or capital assets within the limitations set forth in Section 8.01(i7.01(i); provided, however, that the aggregate amount of all such Indebtedness, together with the aggregate amount of all Indebtedness outstanding pursuant to subclause (ii) of this clause (g), outstanding at the time of such incurrence (after giving effect to such Indebtedness) shall not exceed an amount equal to 10% of Consolidated Total Assets at the time of such incurrence; and (ii) Permitted Refinancings of Indebtedness incurred pursuant to the foregoing subclause (i) of this clause (g);
(fh) Indebtedness of any Person that becomes a Restricted Subsidiary of the Company after the date hereof pursuant to a Permitted Acquisition, which Indebtedness is existing at the time such Person becomes a Subsidiary of the Company (other than Indebtedness incurred solely in contemplation of such Person’s becoming a Subsidiary of the Company) and any Permitted Refinancings thereof; provided that immediately after giving effect to the incurrence of any such Indebtedness, the Company will be in compliance, calculated on a Pro Forma Basis pursuant to Section 1.10, with the financial covenants set forth in Section 7.11;
(i) Indebtedness (which may be secured or relating unsecured) of Foreign Restricted Subsidiaries; provided, however, and subject to real estate acquired other applicable restrictions under Section 6.12, that the aggregate amount of all such Indebtedness, together with the aggregate amount of all Indebtedness outstanding pursuant to subclause (ii) of this clause (i), outstanding at the time of such incurrence shall not exceed the greater of (A) the greater of (x) $100,000,000 and (y) an amount equal to 2% of Consolidated Total Assets at the time of such incurrence and (B) an amount equal to the maximum amount of Indebtedness that would not cause the Foreign Leverage Ratio to exceed 3.50 to 1.00 calculated on a Pro Forma Basis pursuant to Section 1.10; and (ii) Permitted Refinancings of Indebtedness incurred pursuant to the foregoing subclause (i) of this clause (i);
(j) unsecured Indebtedness; provided, however, that (i) immediately after giving effect to the incurrence of any such Indebtedness, the Company will be in compliance, calculated on a Pro Forma Basis pursuant to Section 1.10, with the financial covenants set forth in Section 7.11, (ii) such Indebtedness shall not mature earlier than the date that is 91 days after the latest Maturity Date; provided that any such Indebtedness consisting of a customary bridge facility shall be deemed to satisfy this requirement so long as such Indebtedness automatically converts into long-term debt which satisfies this clause (ii), and (iii) such Indebtedness shall not be subject to any financial covenant which is more restrictive than the financial covenants in the Loan Documents at the time of the incurrence of such Indebtedness;
(k) Indebtedness (which is unsecured if owed by a Loan Party) owed (i) to a Loan Party or (ii) to any other Restricted Subsidiary to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02;
(l) Indebtedness arising from the honoring by a Subsidiary for transmissionbank or other financial institution of a check, distribution draft or right-of-way purposes similar instrument inadvertently drawn against insufficient funds in the ordinary 119889268 course of business; provided, however, that such Indebtedness is extinguished within five Business Days of incurrence;
(m) indemnification, adjustment of purchase price, earnout or similar obligations (including any Earnout Obligations), in each case, on customary terms incurred or assumed in connection with its usual operations, any Permitted Acquisition or permitted Disposition of any business or assets of any Restricted Subsidiary or Equity Interests of a Restricted Subsidiary;
(n) customer deposits and advance payments received in the ordinary course of business;
(i) obligations of any Borrower and or Restricted Subsidiary under the Surety Credit Documents so long as such obligations remain subject to the limitations terms of the Intercreditor Agreement, and (ii) other Surety Bond Obligations (including Surety Bond Obligations of any Person that are assumed or acquired in connection with a Permitted Acquisition); provided that Surety Bond Obligations incurred under this clause (ii) for which the related Liens have not been terminated or made subject to an Intercreditor Agreement within 270 days (or such longer period as may be approved by the Administrative Agent) of the incurrence (or assumption or acquisition, as applicable) therefor may not exceed $200,000,000 in the aggregate;
(p) Indebtedness constituting reimbursement obligations with respect to letters of credit, bankers’ acceptances, bank guarantees and similar obligations; provided, however, that the aggregate principal amount of all Indebtedness incurred in reliance on this clause (p) shall not exceed, at the time of such incurrence (and after giving effect thereto), the greater of (i) $100,000,000 and (ii) an amount equal to 2% of Consolidated Total Assets at the time of such incurrence;
(q) any repurchase or indemnification obligations arising as a result of any breach of any covenant or representation made as part of any Permitted Receivables Transaction;
(r) Indebtedness in the form of secured notes and/or term loans (and/or commitments in respect thereof) issued or incurred by the Borrowers in lieu of Incremental Increases (such notes or loans, “Incremental Equivalent Indebtedness”); provided that, subject, where applicable, to Section 1.13, (i) the aggregate initial principal amount of any Incremental Equivalent Indebtedness shall not exceed the Incremental Facilities Limit (after giving effect to such Incremental Equivalent Indebtedness and any Incremental Increase incurred concurrently therewith), (ii) any Incremental Equivalent Indebtedness shall be in an aggregate amount of not less than $25,000,000 or any whole multiple of $5,000,000 in excess thereof or, if less, the entire remaining amount of the Incremental Facilities Limit, (iii) any Incremental Equivalent Indebtedness that is secured shall be secured only by the Collateral and on a pari passu basis with the Collateral securing the Obligations and subject to an intercreditor agreement in form and substance reasonably satisfactory to the Administrative Agent, which such intercreditor agreement shall provide that any Liens securing such Incremental Equivalent Indebtedness shall rank no higher in priority than the Liens securing the Term Loans, (iv) the weighted average life to maturity of such Incremental Equivalent Indebtedness shall be no shorter than the remaining weighted average life to maturity of the then existing Term Loans, (v) such Incremental Equivalent Indebtedness shall not mature earlier than the latest Maturity Date; provided that any Incremental Equivalent Indebtedness consisting of a customary bridge facility shall be deemed to satisfy this requirement so long as such Incremental Equivalent Indebtedness automatically converts into long-term debt which satisfies this clause (v), (vi) no Incremental 119889268 Equivalent Indebtedness may be guaranteed by any Person that is not a Loan Party or secured by any assets other than the Collateral, (vii) no Incremental Equivalent Indebtedness shall contain any financial performance “maintenance” covenants (whether stated as a covenant, default or otherwise, although “incurrence-based” financial tests may be included) (other than any financial performance “maintenance” covenant that is only applicable after the latest Maturity Date), (viii) such Incremental Equivalent Indebtedness shall be on terms and conditions (other than pricing, rate floors, discounts, fees, premiums and optional prepayment or redemption provisions) that in the good faith determination of the Borrowers are not materially less favorable (when taken as a whole) to the Borrowers than the terms and conditions of the Loan Documents and the Senior Notes Documents (in each case, when taken as a whole) and (ix) no Default shall exist on the date such Indebtedness is incurred immediately prior to or after giving effect thereto or from the application of the proceeds thereof and, after giving effect to the incurrence of such Indebtedness and any transaction to be consummated using the proceeds thereof and assuming that all commitments in respect thereof are fully drawn at such time, the Company and its Restricted Subsidiaries shall be in compliance, calculated on a Pro Forma Basis pursuant to Section 1.10, with the covenants set forth in Section 8.01(z);
(g) other Indebtedness as long as after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.017.11; and
(hs) Guarantees with respect other Indebtedness; provided, however, that the aggregate outstanding principal amount of all Indebtedness incurred in reliance on this clause (s) shall not exceed, at the time of such incurrence (and after giving effect thereto), the greater of (i) $100,000,000 and (ii) an amount equal to Indebtedness permitted under this Section 8.032% of Consolidated Total Assets at the time of such incurrence.
Appears in 1 contract
Samples: Credit Agreement (Mastec Inc)
Indebtedness. CreateThe Company and its Subsidiaries will not, and will not permit any of its Subsidiaries to, contract, create, incur, assume or suffer to exist any Indebtedness, except:
(ai) Indebtedness under incurred pursuant to this Agreement and the Loan other Credit Documents;
(bii) Indebtedness of the Company and its Subsidiaries existing on the Restatement Effective Date shall be permitted to the extent the same is listed on Schedule VII, provided that no refinancings or renewals of the Indebtedness except as expressly set forth on Schedule 8.03 (and renewalsVII shall be permitted and, in any event, refinancings and extensions thereof); provided that (i) renewals shall not be in excess of the amount of respective amounts set forth on Schedule VII and such Indebtedness is not increased refinancing or renewal shall be at customary and market terms at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;
(ciii) intercompany Indebtedness among accrued expenses and current trade accounts payable by the Borrower Company and its Subsidiaries and incurred in the ordinary course of business of the Company and its Subsidiaries;
(div) Indebtedness of the Company constituting Contingent Obligations arising pursuant to a guaranty of the obligations (contingent of any employee of the Company or otherwise) existing or arising under any Swap Contractof its Subsidiaries, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) purchase money Indebtedness, subject to the limitations set forth in extent permitted by Section 8.01(i9.06(iii);
(fv) Indebtedness existing of the Company evidenced by general unsecured Indebtedness and Indebtedness secured by Liens permitted under Sections 9.01(iii)(only with respect to Indebtedness secured thereunder), (iv) and (v) in or relating an amount not to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or exceed at any time $20,000,000;
(vi) Indebtedness of the Company (x) arising in connection with its usual operations, subject to the limitations set forth entering into futures or forward purchase contracts in accordance with Section 8.01(z9.06(v) and (y) under Interest Rate Protection Agreements or Currency Agreements entered into in accordance with Section 9.06(iv);
(g) other Indebtedness as long as after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01; and
(hvii) Guarantees with respect Indebtedness of Subsidiaries of the Company to Indebtedness the Company to the extent permitted under this by Section 8.039.06(vi).
Appears in 1 contract
Indebtedness. Create, issue, incur, assume assume, become liable in respect of or suffer to exist any Indebtedness, except:
(a) Indebtedness under the of any Loan DocumentsParty pursuant to any Loan Document;
(b) Indebtedness set forth on Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal Mentor to any existing commitments unutilized thereunder Subsidiary and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal Borrower to Mentor or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rateother Borrower;
(c) intercompany Indebtedness among the Borrower and its Subsidiaries;
(d) obligations (contingent or otherwise) existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person Guarantee Obligations incurred in the ordinary course of business for by Holdings or any of its Subsidiaries of obligations of any Borrower or, to the purpose of directly mitigating risks associated with liabilitiesextent permitted by the Syndicated Credit Agreement, commitmentsany Wholly Owned Subsidiary;
(d) Indebtedness outstanding on the date hereof and listed on Schedule 7.02(d) and any refinancings, investmentsrefundings, assetsrenewals or extensions thereof (without increasing, or property held or reasonably anticipated by such Personshortening the maturity of, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting partyprincipal amount thereof);
(e) purchase money IndebtednessIndebtedness (including, subject without limitation, Capital Lease Obligations) secured by Liens permitted by Section 7.03(g) in an aggregate principal amount not to exceed, when taken together with the limitations set forth in Section 8.01(i)principal amount of all Loans then outstanding under this Agreement, $20,000,000 at any one time outstanding;
(fi) Indebtedness existing of Mentor in or relating respect of the Senior Subordinated Notes in an aggregate principal amount not to real estate acquired by a Loan Party or a exceed $150,000,000; and (ii) Guarantee Obligations of any Subsidiary for transmissionin respect of such Indebtedness, distribution or right-of-way purposes or in connection with its usual operations, subject provided that such Guarantee Obligations are subordinated to the limitations set forth same extent as the obligations of Mentor in Section 8.01(z)respect of the Senior Subordinated Notes;
(g) other Indebtedness as long as after giving effect thereto of Mentor or any of its Subsidiaries acquired or assumed pursuant to a Permitted Acquisition, which Indebtedness was in existence at the Borrower is time of such Permitted Acquisition and not incurred in compliance with the financial covenant contemplation thereof, in Section 8.11 on a Pro Forma Basis, each case subject to the limitations set forth specified in clause (h) of this Section 8.017.02;
(h) any other Indebtedness of Mentor or any of its Subsidiaries (including any Indebtedness of the types referred to in clause (1) of this Section 7.02 in excess of $5,000,000 permitted thereunder), and any refinancings, refundings, renewals or extensions of any such Indebtedness, in an aggregate amount as to Indebtedness incurred pursuant to clauses (g) and (h) of this Section 7.02 (plus the then outstanding aggregate amount of any refinancings, refundings, renewals or extensions of such Indebtedness and the Net Payment Amount of any outstanding Sale Leaseback Transactions entered into pursuant to Section 7.11) not exceeding $30,000,000 at any one time outstanding; provided, however, in no event shall any Indebtedness of Permitted Foreign Subsidiaries, together with Investments made pursuant to Section 7.08(x), exceed $3,000,000 at any one time outstanding;
(i) Indebtedness of Holdings to Mentor to the extent the related advance would be permitted to be made as a Restricted Payment hereunder (it being understood that any such advance shall be deemed to be and shall count as a Restricted Payment for purposes of Section 7.06);
(j) Indebtedness under performance, surety, statutory or appeal bonds or with respect to worker’s compensation claims or other bonds permitted under Section 7.03;
(k) Indebtedness incurred in the ordinary course of business in respect of netting services, overdraft protections and otherwise in connection with deposit accounts.
(l) Indebtedness consisting of Earnout Obligations and promissory notes or similar obligations issued by any Loan Party relating to licenses to be acquired in connection with a Permitted Acquisition that cannot be transferred to such Loan Party prior to or concurrently with the consummation of such Permitted Acquisition, in an aggregate amount (valuing Earnout Obligations only to the extent then required to be included on a consolidated balance sheet of Holdings) not exceeding $5,000,000 at any one time outstanding;
(m) Indebtedness consisting of promissory notes issued by Holdings or Mentor to officers, directors and employees of Holdings, Mentor or any Subsidiary of Mentor to purchase or redeem Capital Stock of Mentor or Holdings to the extent permitted hereunder, in an aggregate amount not exceeding $1,000,000 at any time outstanding to the extent not constituting Subordinated PIK Debt;
(n) Subordinated PIK Debt of Holdings in an aggregate amount not exceeding $30,000,000 at any one time outstanding incurred by it in connection with Permitted Acquisitions or Investments permitted hereunder, plus the aggregate amount of interest on such Subordinated PIK Debt paid in kind or through accretion or capitalization; provided that for purposes of this Section 7.02(n), any Subordinated PIK Debt in the form of redeemable preferred stock of Holdings shall be deemed to constitute Indebtedness;
(o) Indebtedness under Swap Agreements permitted pursuant to Section 7.12 and obligations owed by Holdings, Mentor or any of its Subsidiaries in respect of any overdraft and other liabilities arising from treasury, depository and cash management services or any automated clearing house transfers of funds to the extent permitted under the Syndicated Credit Agreement;
(p) Indebtedness of Mentor that may be deemed to exist under any acquisition agreement pertaining to acquisitions consummated prior to the Closing Date; and
(hq) Guarantees with respect to Indebtedness permitted under this Section 8.03the Syndicated Credit Agreement and related loan documents.
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under (i) the Loan DocumentsDocuments and (ii) ABL Facility Indebtedness of the Loan Parties (A) under clause (i) of the definition of ABL Facility Indebtedness in an aggregate principal amount at any time outstanding not to exceed the sum of (I) $50,000,000 plus (II) the aggregate principal amount of any incremental commitments incurred thereunder up to $25,000,000 and (B) under clauses (ii) and (iii) of the definition of ABL Facility Indebtedness, and, in each case, any Permitted Refinancing of the Indebtedness described in this clause (ii);
(b) Indebtedness set forth outstanding on the Closing Date (other than Indebtedness under the UK Revolver) and listed on Schedule 8.03 (7.03 and renewals, refinancings and extensions any Permitted Refinancing thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;
(c) intercompany Guarantees of any Loan Party in respect of Indebtedness among the Borrower and its Subsidiariesotherwise permitted hereunder of any other Loan Party;
(d) obligations (contingent or otherwise) of Holdings or any Subsidiary of Holdings existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting partyparty (other than pursuant to customary netting or setoff provisions);
(e) Indebtedness (i) of Holdings or any Subsidiary of Holdings in respect of Capital Leases and purchase money Indebtedness, subject obligations for fixed or capital assets or (ii) of any Person acquired in a Permitted Acquisition (so long as such Indebtedness (A) existed prior to the acquisition of such Person by a Subsidiary of Holdings, (B) is not created in contemplation of such acquisition and (C) is solely the obligation of such Person, and not of Holdings or any other Subsidiary), which in the case of each of clauses (i) and (ii) may be secured by Liens under and within the applicable limitations set forth in Section 8.01(i7.01(i); provided, however, provided, however, that the aggregate amount of all such Indebtedness at any one time outstanding pursuant to this clause (e) shall not exceed the greater of (i) $10,000,000 and (ii) 2.50% of the consolidated total assets of Holdings and its Subsidiaries;
(f) Indebtedness existing of Holdings or any Subsidiary thereof owing to Holdings or any Subsidiary thereof, which Indebtedness shall (i) in or relating the case of Indebtedness owed to real estate acquired a Loan Party, constitute Pledged Notes under the Collateral Agreement and (ii) if such Indebtedness is owed by a Loan Party or to a Subsidiary for transmissionnon-Loan Party, distribution or right-of-way purposes or be expressly subordinated in connection with its usual operations, subject right of payment to the limitations set forth in Section 8.01(z)Obligations pursuant to the Intercompany Subordination Agreement;
(g) Indebtedness (i) under the UK Revolver and any Permitted Refinancing thereof up to an amount not to exceed $5,000,000 at any one time outstanding and (ii) incurred by a Foreign Subsidiary and which, when aggregated with the principal amount of all other Indebtedness as long as after giving effect thereto incurred pursuant to this clause (g)(ii) and then outstanding, does not exceed the Borrower is greater of (i) $10,000,000 and (ii) 2.50% of the consolidated total assets of Holdings and its Subsidiaries;
(h) other Indebtedness of Holdings and its Subsidiaries in compliance an aggregate principal amount at any one time outstanding not to exceed the greater of (i) $25,000,000 and (ii) 6.25% of the consolidated total assets of Holdings and its Subsidiaries;
(i) Indebtedness of Holdings or any of its Subsidiaries consisting of obligations to pay insurance premiums or take-or-pay obligations contained in supply arrangements incurred in the ordinary course of business;
(j) Indebtedness in respect of overdraft facilities, automatic clearinghouse arrangements, employee credit card programs and other business cash management arrangements in the ordinary course of business;
(k) Notes issued in connection with the financial covenant in Section 8.11 on a Pro Forma Basis, subject cashless stock repurchases to the limitations set forth extent otherwise permitted hereunder in an aggregate principal amount not to exceed $5,000,000 in any Fiscal Year;
(l) Indebtedness 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 Holdings or any direct or indirect parent of Holdings permitted by Section 8.017.06;
(m) Indebtedness representing deferred compensation to employees of Holdings or any of their Subsidiaries incurred in the ordinary course of business;
(n) Indebtedness under the Refinancing Notes or Credit Agreement Refinancing Indebtedness, in any case, the Net Cash Proceeds of which are applied to repay the applicable Term Loans; and
(ho) Guarantees Indebtedness in respect of Permitted Debt Exchange Notes incurred pursuant to a Permitted Debt Exchange in accordance with respect to Indebtedness permitted under this Section 8.032.18 and any Permitted Refinancings thereof.
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness of the Borrowers and their Subsidiaries set forth on in Schedule 8.03 (and renewals, refinancings and extensions thereofthereof on terms and conditions not materially less favorable to the applicable debtor(s); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancingrenewal, renewal refinancing or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if anyextension), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;
(c) intercompany Indebtedness; provided that if such Indebtedness among the Borrower and its Subsidiariesis owing from a Loan Party to a non-Loan Party, such Indebtedness is unsecured;
(d) obligations (contingent or otherwise) of any Borrower or any Subsidiary existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property Property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(ei) purchase money Indebtednessobligations of any Borrower or any Subsidiary under surety bonds provided in the ordinary course of business (and indemnity and reimbursement obligations related thereto), (ii) obligations of the Company and its Subsidiaries under the Surety Credit Documents; provided that such obligations are subject to the limitations set forth terms of the Intercreditor Agreement, and (iii) obligations of any Subsidiary of the Company (including any Person with which such Subsidiary is merged or consolidated pursuant to the applicable Permitted Acquisition or other Investment permitted by this Agreement) that in Section 8.01(i)either case is acquired subsequent to the Closing Date pursuant to a Permitted Acquisition or other Investment permitted by this Agreement with respect to any surety bonds in existence at the time of the applicable Permitted Acquisition or other Investment; provided that such surety bonds (x) were provided in the ordinary course of business or (y) are released or replaced with surety bonds issued pursuant to the Surety Credit Documents and subject to the terms of the Intercreditor Agreement, or pursuant to any Foreign Surety Credit Documents, or replaced with surety bonds provided in the ordinary course of business, within two hundred twenty-five (225) days of the date of such Permitted Acquisition or other Investment;
(f) purchase money Indebtedness existing (including obligations and Attributable Indebtedness in respect of Capital Leases or relating Synthetic Leases) hereafter incurred by any Borrower or any of its Subsidiaries to real estate acquired by finance the purchase of fixed assets, and renewals, refinancings and extensions thereof, provided that (i) the total of all such Indebtedness for all such Persons taken together shall not exceed an aggregate principal amount of $50,000,000 at any one time outstanding; (ii) such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed; and (iii) no such Indebtedness shall be refinanced for a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or principal amount in connection with its usual operations, subject to excess of the limitations set forth in Section 8.01(z)principal balance outstanding thereon at the time of such refinancing;
(g) any other Indebtedness as long as unsecured Indebtedness; provided that (i) immediately after giving effect thereto to the Borrower is incurrence of any such unsecured Indebtedness the Loan Parties will be in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations covenants set forth in Section 8.018.11; andand (ii) the aggregate principal amount of all such unsecured Indebtedness incurred by Domestic Subsidiaries of the Company (other than Indebtedness of any Person existing at the time such Person becomes a Subsidiary or at the time such Person is merged with or into the Company or any Subsidiary, in each case, after the Sixth Amendment Effective Date; provided, that, such Indebtedness is not created in contemplation of such transaction) shall not exceed $250,000,000 at any one time outstanding;
(h) secured Indebtedness in an aggregate principal amount not to exceed $200,000,000 at any one time outstanding;
(i) unsecured Indebtedness to a seller incurred in connection with a Permitted Acquisition or other Investment permitted by this Agreement, provided that (i) such Indebtedness is expressly subordinated in right of payment to the prior payment of the Obligations under this Agreement and the other Loan Documents on terms and conditions reasonably satisfactory to the Administrative Agent, (ii) such Indebtedness contains covenants no more restrictive than the covenants contained in this Agreement and the other Loan Documents and contains standstill provisions reasonably acceptable to the Administrative Agent and (iii) no payments may be made on such Indebtedness if a Default or Event of Default shall have occurred and be continuing or would occur as a result of any such payment;
(j) Permitted Subordinated Indebtedness, provided that no Default or Event of Default is in existence at the time of any incurrence thereof and immediately after giving effect thereto;
(k) Guarantees with respect to Indebtedness permitted under clauses (a) through (i), (n) and (o) of this Section 8.03;
(l) Guarantees (which Guarantees shall be similarly subordinated) with respect to Indebtedness permitted under clause (j) of this Section 8.03;
(m) secured Indebtedness of all Foreign Subsidiaries (other than Foreign Borrowers, except with respect to Indebtedness pursuant to any Foreign Surety Credit Documents) in an aggregate principal amount not to exceed $200,000,000 at any one time outstanding;
(n) Indebtedness of any Borrower or any of their Subsidiaries consisting of the financing of insurance premiums in the ordinary course of business;
(o) to the extent constituting Indebtedness, obligations incurred by any Borrower or any Subsidiary in respect of transactions permitted under Section 8.15; and
(p) obligations in connection with any Permitted Receivables Financing, to the extent such obligations constitute Indebtedness.; and
(q) Indebtedness pursuant to the Senior Notes.
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness of the Borrowers and/or their Subsidiaries set forth on in Schedule 8.03 (and renewals, refinancings and extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate8.03;
(c) intercompany Indebtedness among the Borrower and its Subsidiariespermitted under Section 8.02;
(d) obligations (contingent or otherwise) of DTAG or any Subsidiary existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation Person or taking a “market view;” and (ii) such Swap Contract does obligations are (or were) entered into by such Person for the purpose of directly mitigating risks associated with, or documenting, transactions permitted under Section 8.02 or 8.06 so long as such obligations are not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting partyentered into for purposes of speculation;
(e) purchase money IndebtednessIndebtedness (including obligations in respect of Capital Leases or Synthetic Leases but excluding Vehicle Debt) hereafter incurred by DTAG or any of its Subsidiaries to finance the purchase of fixed assets, subject to and renewals, refinancings and extensions thereof, provided that (i) the limitations set forth total of all such Indebtedness for all such Persons taken together shall not exceed an aggregate principal amount of $10,000,000 at any one time outstanding; (ii) such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed; and (iii) no such Indebtedness shall be refinanced for a principal amount in Section 8.01(i)excess of the principal balance outstanding thereon at the time of such refinancing;
(fi) Indebtedness existing in or relating to real estate acquired by a any Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or may become and remain liable with respect to Indebtedness of any Person assumed in connection with its usual operations, subject any Permitted Acquisition and (ii) a Person that becomes a Subsidiary of DTAG as a result of a Permitted Acquisition may remain liable with respect to Indebtedness existing on the limitations set forth date of such Permitted Acquisition; provided that such Indebtedness is not created in Section 8.01(z)anticipation of such Permitted Acquisition;
(g) other Permitted Unsecured Indebtedness of DTAG in an aggregate outstanding principal amount not to exceed at any time $400,000,000 (or such greater amount as long as may be approved by the Required Lenders); provided, that the Administrative Agent shall have received a certificate of DTAG signed by a Responsible Officer of DTAG certifying and demonstrating in detail reasonably satisfactory to the Administrative Agent that (x) no Default or Event of Default exists immediately prior to and after the incurrence of any such Permitted Unsecured Indebtedness and (y) upon giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 to such incurrence of Indebtedness on a Pro Forma Basis, subject to the limitations Loan Parties would be in compliance with the financial covenants set forth in Section 8.01; and
8.11 as of the most recent fiscal quarter for which DTAG was required to deliver financial statements pursuant to Section 7.01(a) or (h) Guarantees with respect to Indebtedness permitted under this Section 8.03.b);
Appears in 1 contract
Samples: Credit Agreement (Dollar Thrifty Automotive Group Inc)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the Closing Date and set forth on in Schedule 8.03 (and any renewals, refinancings refinancings, amendments, replacements and extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal refinancing or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing or extension and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, whole of any such refinancing, renewal refinancing or extension are no not materially less favorable in any material respect to the Loan Parties Borrower and their its Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed refinanced or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rateextended;
(c) intercompany Intercompany Indebtedness among permitted under Section 8.02; provided that in the Borrower case of Indebtedness owing by a Loan Party to a Foreign Subsidiary (i) such Indebtedness shall be subordinated prior to the Obligations in a manner and its Subsidiariesto an extent reasonably acceptable to the CHAR1\1533762v5 Administrative Agent and (ii) such Indebtedness shall not be prepaid unless no Default exists immediately prior to or after giving effect to such prepayment;
(d) obligations (contingent or otherwise) existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting non‑defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) purchase money IndebtednessIndebtedness hereafter incurred to finance the purchase of fixed assets, subject to and obligations in respect of capital leases and Synthetic Lease Obligations, and renewals, replacements, amendments, refinancings and extensions of the limitations set forth in Section 8.01(i)foregoing, provided that (i) the aggregate outstanding principal amount of all such Indebtedness shall not exceed $5,000,000 at any one time outstanding; and (ii) such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed;
(f) Indebtedness existing in or relating to real estate acquired by a Loan Party or a Subsidiary for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to the limitations set forth in Section 8.01(z);
(g) other Indebtedness as long as after giving effect thereto the Borrower is in compliance with the financial covenant in Section 8.11 on a Pro Forma Basis, subject to the limitations set forth in Section 8.01; and
(h) Guarantees with respect to Indebtedness permitted under clauses (a) through (e) this Section 8.03; and
(g) Indebtedness in respect of worker’s compensation claims, self-insurance obligations, bankers’ acceptances and bid, performance bonds, revenue bonds, stay bonds, customs bonds, bid bonds, appeal bonds, surety bonds and similar obligations and trade-related letters of credit and performance and completion guarantees issued for the account of any Loan Party, in each case, incurred in the ordinary course of business;
(h) 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;
(i) Indebtedness arising in connection with the endorsement of instruments for deposit in the ordinary course of business;
(j) Indebtedness in the form of obligations under indemnification, purchase price adjustments, incentive, non-compete, consulting, deferred compensation, earn-out and similar obligations incurred in connection with any Permitted Acquisition;
(k) Indebtedness under the Wyoming Credit Agreement in a principal amount not to exceed $265,000,000 in the aggregate (and any renewals, refinancings, amendments, replacements and extensions thereof); provided that none of the Loan Parties shall in any manner be obligors with respect to such Indebtedness, whether by Guarantee of such Indebtedness or otherwise;
(l) other Indebtedness of a nature not contemplated in the foregoing clauses in an amount not to exceed (i) with respect to the Loan Parties and their Subsidiaries (other than Wyoming and its Subsidiaries), $200,000 in the aggregate at any time outstanding and (ii) with respect to Wyoming and its Subsidiaries, $1,000,000 in the aggregate at any time outstanding;
(m) Indebtedness representing deferred compensation to employees of the Borrower or any Subsidiary; and CHAR1\1533762v5
(n) Indebtedness under the Indenture.
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness set forth listed on Schedule 8.03 7.03 that is outstanding on the Closing Date;
(and renewals, refinancings and extensions thereof)c) Guarantees of the Borrower or any of its Subsidiaries in respect of Indebtedness of the Borrower or any of its Subsidiaries otherwise permitted hereunder; provided that (i) Loan Parties may (A) issue Guarantees under this clause only in respect of Indebtedness of other Loan Parties and (B) issue Guarantees of Indebtedness of Excluded Subsidiaries that does not exceed, when added to the amount of such Indebtedness is not increased all deposits to secure letters of credit for the account of a Foreign Subsidiary under Section 7.01(f), $15,000,000 in the aggregate at the any time of such refinancingoutstanding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and Excluded Subsidiaries may issue Guarantees of Indebtedness of other material terms taken Subsidiaries so long as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;
(c) intercompany Indebtedness among the Borrower and its Subsidiariesis permitted hereunder;
(d) obligations (contingent or otherwise) existing or arising under any Swap Contract, ; provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;,” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) purchase money Indebtednessintercompany Indebtedness constituting an Investment that is permitted under Sections 7.02(d), subject to the limitations set forth in Section 8.01(i(e), (f) or (g);
(f) unsecured Indebtedness existing of any Loan Party; provided that (i) after giving effect to such Indebtedness, (A) the Consolidated Total Leverage Ratio calculated on a Pro Forma Basis is less than (1) 3.50 to 1.00 at any time on or before March 31, 2012, and (2) 3.25 to 1.00 at any time thereafter, and (B) the Borrower and its Subsidiaries are in compliance with all covenants set forth herein, (ii) the scheduled maturity date of such Indebtedness is no earlier than three (3) months after the Maturity Date and such Indebtedness does not contain any provisions providing for a holder put right or relating to real estate acquired by a mandatory repurchase obligation of any Loan Party or a Subsidiary prior to such date (other than customary asset sale and change of control repurchase obligations), (iii) the financial covenants and other negative covenants in the definitive documentation for transmission, distribution or right-of-way purposes or in connection with its usual operations, subject to such Indebtedness shall be no more restrictive than the limitations financial and other negative covenants set forth herein in Section 8.01(z)the reasonable determination of the Borrower, (iv) the other terms and conditions of the definitive documentation for such Indebtedness, taken as a whole, shall be customary for definitive documentation of Indebtedness of similarly situated issuers of similar forms of Indebtedness at such time in the reasonable determination of the Borrower, and (v) no Default has occurred and is continuing or could reasonably be expected to result therefrom;
(g) other Indebtedness as so long as after giving effect thereto (i) no Event of Default has occurred and is continuing or would result therefrom and (ii) the Borrower is and its Consolidated Subsidiaries shall be in compliance with the financial covenant in Section 8.11 on a Pro Forma BasisBasis with Section 7.17 after giving effect to such transaction, subject secured Indebtedness in an aggregate principal amount not to exceed $50,000,000 at any time outstanding; provided that such Indebtedness is not contractually senior in right of payment to the limitations payment of the Indebtedness arising under this Agreement and the Loan Documents and either (x) was assumed or existed in connection with a Permitted Acquisition and the Liens securing such Indebtedness do not at any time encumber any Property other than the Property acquired in such Permitted Acquisition, or (y) is purchase money Indebtedness (including Capitalized Leases or Off-Balance Sheet Obligations) so long as (i) such Indebtedness, when incurred, shall not exceed 100% of the cost or fair market value, whichever is lower, of the Property being acquired on the date of acquisition plus fees and expenses reasonably incurred in connection with such acquisition, (ii) such Indebtedness is created and any Lien attaches to such Property concurrently with or within forty-five (45) days of the acquisition thereof, and (iii) such Lien does not at any time encumber any Property other than the Property financed by such Indebtedness;
(h) so long as (i) no Event of Default has occurred and is continuing or would result therefrom and (ii) the Borrower and its Consolidated Subsidiaries shall be in compliance on a Pro Forma Basis with Section 7.17 after giving effect to such transaction, unsecured Indebtedness (including reimbursement obligations under letters of credit and obligations in respect of performance bonds and completion guarantees) of the Loan Parties in an aggregate principal amount not to exceed $50,000,000 at any time outstanding; provided, that such Indebtedness is not contractually senior in right of payment to the payment of the Indebtedness arising under this Agreement and the Loan Documents;
(i) Indebtedness arising from any agreement entered into by the Borrower or any Subsidiary providing for customary indemnification, purchase price adjustment, contingent consideration or similar obligations, in each case, incurred or assumed in connection with an Acquisition or Disposition permitted hereunder;
(j) securities issued in a Convertible Note Exchange;
(k) Indebtedness representing a refinancing, refunding, renewal or extension of Indebtedness (x) permitted by clause (b), (f) or (j) above or clause (l) below; provided, that (i) the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension, (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, refunding, renewing or extending Indebtedness, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the Loan Parties or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, refunded, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate, (iii) with respect to the Convertible Notes (2012) and any debt incurred pursuant to Section 7.03(f) or (j), the maturity date is no earlier than three (3) months after the Maturity Date, and (iv) with respect to any Indebtedness incurred pursuant to Section 7.03(f) above as long as the conditions to the incurrence thereof as set forth in clause (f) remain true and correct at the time of and after giving effect to such refinancing, renewal or extension, and (y) permitted by clause (h) above, as long as the conditions to the incurrence thereof remain true and correct at the time of and after giving effect to such refinancing, renewal or extensions;
(l) Indebtedness of Excluded Subsidiaries in an aggregate principal amount not to exceed $50,000,000 at any time outstanding; provided, that, the amount of Indebtedness available under Section 8.017.03(h) shall be reduced dollar for dollar by the amount of Indebtedness in excess of $25,000,000 outstanding under this Section 7.03(l); and
(hm) Guarantees with respect to Indebtedness permitted under this Section 8.03Permitted Warrant Transactions that constitute Indebtedness.
Appears in 1 contract
Samples: Credit Agreement (Integra Lifesciences Holdings Corp)
