Indebtedness. Such Obligor will not, and will not permit any of its Subsidiaries to, create, incur, assume or permit to exist any Indebtedness, whether directly or indirectly, except: (i) the Obligations; (ii) Indebtedness owing under the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereof; (iii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement); (iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders; (v) 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 such Obligor’s or any of its 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; (vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business; (vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders; (viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time; (ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time; (x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v); (xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries; (xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts; (xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and (xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securities.
Appears in 3 contracts
Samples: Waiver and Consent Agreement (Kadmon Holdings, LLC), Credit Agreement (Kadmon Holdings, LLC), Security Agreement (Kadmon Holdings, LLC)
Indebtedness. Such The Borrower and each other Obligor will not, and will not permit any of its Restricted Subsidiaries to, create, incurincur or assume, assume or permit otherwise become or remain directly or indirectly liable with respect to exist any Indebtedness, whether directly or indirectly, except:
(ia) Obligations of the ObligationsObligors under the Loan Documents;
(iib) Indebtedness owing under existing on the Non-Convertible Credit Facility Loan Documents date hereof and Permitted Refinancings thereof; provided that set forth in Section 6.01 of the aggregate outstanding principal amount of all such Indebtedness shall not exceed at Borrower Disclosure Letter and any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal refinancing, refundings, renewals or extensions thereof;
(iiic) Capital Lease Obligations, purchase money Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added loans incurred to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 acquire or improve equipment or other physical plant or real property of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) 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 such Obligor’s Parent or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financingRestricted Subsidiary; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 the purchase price plus expenses of the asset or assets acquired (or the Equivalent Amount in improvement thereon, as applicable) and (ii) any Lien that secures such Indebtedness does not apply to any other currenciesproperty or assets of the Parent or its Restricted Subsidiaries; provided, further the aggregate principal amount of Indebtedness permitted by this clause (c) shall not exceed, at any timetime outstanding, the greater of (x) $150,000,000 or (y) the amount of such Indebtedness and purchase money Indebtedness, if, immediately after giving effect thereto, the Total Net Leverage Ratio determined on a Pro Forma Basis, is less than 3.00:1.00.
(d) Indebtedness of (i) any Restricted Subsidiary to any Obligor or to any other Restricted Subsidiary or (ii) any Obligor to any other Obligor or any other Restricted Subsidiary; provided that (i) except during a Collateral Release Period, all such Indebtedness shall be evidenced by the Intercompany Note, and, if owed to an Obligor, shall be subject to a Lien under the Collateral Documents, (ii) all such Indebtedness shall be unsecured and, if owed by an Obligor, subordinated in right of payment to payment in full of the Obligations, as set forth in the Intercompany Note, and (iii) such Indebtedness is permitted as an Investment under Section 6.06(c);
(xe) obligations of any Obligor Indebtedness incurred by the Borrower or any of its Subsidiaries (i) Restricted Subsidiary arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including for including, Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisitionan Acquisition permitted hereunder), or (ii) under from guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor the Borrower or any of its Subsidiaries, in each casesuch Restricted Subsidiary pursuant to such agreements, in connection with transactions Acquisitions permitted under Section 9(c)(vhereunder or permitted dispositions of any business or assets (including stock of a Subsidiary);
(xif) contingent Indebtedness in respect of any Hedging Transaction entered into for the purpose of hedging risks associated with the operations of the Obligors and their respective Subsidiaries and not for speculative purposes;
(g) Indebtedness of the Obligors and their respective Restricted Subsidiaries which may be deemed to exist pursuant to any Guarantees, performance, statutory or similar obligations (including in connection with workers’ compensation) or obligations in respect to performance guaranties and of letters of credit, surety bonds bonds, bank guarantees or similar instruments related thereto incurred in the ordinary course of business and business, or pursuant to any appeal obligation, appeal bond or letter of credit in respect of judgments that do not constitute an Event of Default under clause (j) of Section 9.01;
(h) Guarantees by the Parent of Indebtedness of a type and amount consistent with past practices Restricted Subsidiary or Guarantees by a Restricted Subsidiary of Indebtedness of the Obligors Parent or any Restricted Subsidiary with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01; provided, that (i) if the Indebtedness that is being guaranteed is unsecured and/or subordinated to the Obligations, the Guarantee shall also be unsecured and/or subordinated to the Obligations and their (ii) in the case of Guarantees by an Obligor of the obligations of a Restricted Subsidiary that is not a Guarantor, such Guarantees shall be permitted by Section 6.06(c);
(i) Indebtedness of any Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Subsidiary in a transaction permitted hereunder) after the date hereof, and refinancing of such Indebtedness in respect thereof; provided that (i) such Indebtedness exists at the time such Person becomes a Subsidiary (or is so merged or consolidated) and is not created in contemplation of or in connection with such Person becoming a Subsidiary (or such merger or consolidation) and (ii) the aggregate principal amount of all such outstanding Indebtedness permitted by this clause (i) shall not exceed $25,000,000 at any time;
(j) other Indebtedness of the Borrower and the other Restricted Subsidiaries not otherwise permitted by this Section 6.01 so long as, immediately after giving effect thereto, the Total Net Leverage Ratio determined on a Pro Forma Basis, would not exceed 2.50:1.00;
(i) Indebtedness owing to insurance companies to finance insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case under clause (i) or (ii), in the ordinary course of business;
(l) Indebtedness under or in connection with (i) any commercial credit card program, (ii) purchasing or “p-card” program or (iii) similar programs, arising in the ordinary course of business;
(m) Indebtedness consisting of incentive, non-compete, consulting, deferred compensation or other similar arrangements entered into in the ordinary course of business with an officer or employee of any Obligor or its Subsidiaries;
(xiin) obligations Indebtedness in respect of netting services, overdraft protections and other similar cash management products for otherwise in connection with deposit accounts;
(xiiio) Indebtedness in respect of letters of credit, bank guarantees or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business and consistent with past practice;
(p) other unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), permitted by the foregoing in an aggregate principal amount outstanding at any one time not exceeding $20,000,000;
(q) Indebtedness in respect of letters of credit or bankers’ acceptances supporting facility leases in an aggregate principal or face amount not to exceed exceeding $5,000,000 at any time outstanding;
(r) Refinancing Indebtedness in respect of Sections 6.01(b), 6.01(c), 6.01(h), 6.01(j), 6.01(p) and 6.01(t);
(s) Disqualified Equity Interests in an aggregate principal amount not exceeding $5,750,0005,000,000; and
(t) Indebtedness incurred by the Parent or its Restricted Subsidiary to acquire, construct or improve the New Fulfillment Center; provided that Issuer shall give (i) such Indebtedness does not exceed the Holders purchase price of at least the New Fulfillment Center (or improvement thereon, as applicable) plus expenses, and (ii) any Lien that secures such Indebtedness does not apply to property or assets of the Parent or its Restricted Subsidiaries other than assets that are or will be a majority in part of the New Fulfillment Center; provided, further that the aggregate principal amount of the outstanding Securities written notice prior to the incurrence of Indebtedness permitted by this clause (t) shall not exceed, at any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securitiestime outstanding, $50,000,000.
Appears in 3 contracts
Samples: Revolving Credit and Guaranty Agreement (Blue Apron Holdings, Inc.), Revolving Credit and Guaranty Agreement (Blue Apron Holdings, Inc.), Revolving Credit and Guaranty Agreement (Blue Apron Holdings, Inc.)
Indebtedness. Such Obligor will notWith respect to a Person, and will not permit any at the time of its Subsidiaries to, create, incur, assume or permit to exist any Indebtedness, whether directly or indirectly, except:
(i) the Obligations;
(ii) Indebtedness owing under the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereof;
(iii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal computation thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 all of the Non-Convertible Credit Facility Agreement; provided that, following (without duplication): (a) all obligations of such Person in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
respect of money borrowed (v) accounts payable to other than trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) debt incurred in the ordinary course of business); (b) all obligations of such Obligor’s Person, whether or not for money borrowed (i) represented by notes payable, or drafts accepted, in each case representing extensions of credit (but only to the extent of any outstanding balance), (ii) evidenced by bonds, debentures, notes or similar instruments, or (iii) constituting purchase money indebtedness, conditional sales contracts, title retention debt instruments or other similar instruments, upon which interest charges are customarily paid or that are issued or assumed as full or partial payment for property or services rendered; (c) obligation of its Subsidiaries’ business such Person as a lessee or obligor under a Capitalized Lease; (d) reimbursement obligations, contingent or otherwise, in accordance connection with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for in accordance any letters of credit actually issued (other than letters of credit issued to provide credit enhancement or support with GAAP;
(vi) respect to other Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor such Person or any of its Subsidiaries if such other Indebtedness appears as a liability on the consolidated balance sheet of such Person and its consolidated Subsidiaries in accordance with GAAP) or amounts representing the ordinary course balance deferred and unpaid of business;
the purchase price of any property except any such balance that constitutes an accrued expense or trade payable; (viie) all obligations of such Person in respect of any purchase obligation, repurchase obligation, takeout commitment or forward equity commitment, in each case evidenced by a binding agreement (excluding any such obligation to the extent the obligation can be solely satisfied by the issuance of Equity Interests); (f) all Indebtedness of other Persons which such Person has guaranteed or is otherwise recourse to such Person (except for guaranties of customary exceptions for fraud, misapplication of funds, environmental indemnities, violation of “special purpose entity” covenants, and other similar exceptions to recourse liability until a claim is made with respect thereto, and then shall be included only to the extent of the amount of such claim), including any obligation to supply funds to or in any manner to invest directly or indirectly in a Person, to maintain working capital or equity capital of a Person or otherwise to maintain net worth, solvency or other financial condition of a Person, to purchase indebtedness, or to assure the owner of indebtedness against loss, including, without limitation, through an agreement to purchase property, securities, goods, supplies or services for the purpose of enabling the debtor to make payment of the indebtedness held by such owner or otherwise; and (g) such Person’s Unconsolidated Allocation Percentage of the Indebtedness of any Obligor to any other Obligor; provided that, in each case, Unconsolidated Entity of such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Person. Indebtedness of any other Obligor Person shall include Indebtedness of any partnership in an aggregate principal amount not exceeding $1,150,000 (or which such Person is a general partner to the Equivalent Amount in other currencies) at any time;
(ix) normal course extent of business equipment financing; provided that (i) if secured, the collateral therefor consists solely such Person’s pro rata share of the assets being financedownership of such partnership (except if such Indebtedness, or portion thereof, is recourse to such Person, in which case the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount greater of such Person’s pro rata portion of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount recourse portion of the outstanding SecuritiesIndebtedness, shall be included as Indebtedness of such Person). All Loans and Letter of Credit Liabilities shall constitute Indebtedness of the Borrower.
Appears in 3 contracts
Samples: Credit Agreement (Mid-America Apartments, L.P.), Credit Agreement (Mid-America Apartments, L.P.), Credit Agreement (Mid-America Apartments, L.P.)
Indebtedness. Such Obligor No Borrower shall, nor will not, and will not it permit any of its Subsidiaries to, contract, create, incur, assume or permit suffer to exist any Indebtedness, whether directly or indirectly, except:;
(ia) the Obligations;
(ii) Indebtedness , Hedging Liability, and Bank Product Liability of the Borrowers and their Subsidiaries owing under to the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 Administrative Agent and the amount of interest thereon compounded Lenders (and added to the principal thereof;
(iii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreementtheir Affiliates);
(ivb) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated owed pursuant to the Obligations on terms satisfactory to the Required Holders;
(v) accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred Hedge Agreements entered into in the ordinary course of such Obligor’s business and not for speculative purposes with Persons other than Lenders (or any of its 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 GAAPtheir Affiliates);
(vic) intercompany Indebtedness consisting among the Borrowers, or between or among any Borrower or Borrowers and any Subsidiary or Subsidiaries to the extent permitted by Section 6.14;
(d) Purchase Money Indebtedness and Capitalized Lease Obligations of guarantees resulting from the Borrowers and their Subsidiaries in an amount not to exceed $20,000,000 in the aggregate at any time outstanding; provided, however, not more than $5,000,000 of such amount at any one time outstanding shall be permitted for expenditures that are not Capital Expenditures;
(e) endorsement of negotiable instruments or other payment items for collection by any Obligor or any of its Subsidiaries deposit in the ordinary course of business;
(viif) Indebtedness consisting of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds unsecured guarantees incurred in the ordinary course of business with respect to surety and of a type appeal bonds, performance bonds, bid bonds, appeal bonds, completion guarantee and amount consistent similar obligations; and (ii) unsecured guarantees arising with past practices of the Obligors and their Subsidiariesrespect to customary indemnification obligations to purchasers in connection with permitted dispositions;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiiig) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), Borrower or any Subsidiary in an aggregate principal amount not to exceed $25,000,000 at any time $5,750,000outstanding that is incurred on the date of the consummation of a Permitted Acquisition solely for the purpose of consummating such Permitted Acquisition; provided that Issuer (i) no Event of Default has occurred and is continuing or would result therefrom, (ii) such unsecured Indebtedness is not incurred for working capital purposes, (iii) such unsecured Indebtedness does not mature prior to that date that is twelve (12) months after the Termination Date, (iv) such Indebtedness is subordinated in right of payment to the Obligations, Hedging Liability and Bank Product Liability on terms and conditions reasonably satisfactory to the Administrative Agent and is otherwise on terms and conditions (including all economic terms and the absence of covenants) reasonably acceptable to the Administrative Agent, and (v) the only interest that accrues with respect to such Indebtedness is payable in kind;
(h) Acquired Indebtedness in an amount not to exceed $10,000,000 in the aggregate at any time outstanding;
(i) Indebtedness owed to any Person providing property, casualty, liability, or other insurance or the broker therefore or any company providing financing with respect to the premiums for such insurance to or for the benefit of any Borrower or any Subsidiary, so long as the amount of such Indebtedness is not in excess of the amount of the unpaid cost of, and shall give be incurred only to defer the Holders cost of, unpaid insurance premiums for the one year in which such Indebtedness is incurred and such Indebtedness is outstanding only during such year;
(j) unsecured Indebtedness incurred in respect of at least overdraft protection, and other like services, in each case, incurred in the ordinary course of business;
(k) Contingent Obligations of a majority Borrower or a Subsidiary in respect of Indebtedness otherwise permitted hereunder;
(l) to the extent constituting Indebtedness, investments permitted under Section 6.14;
(m) secured Indebtedness of any Borrower or any Subsidiary not otherwise permitted by this Section in an aggregate principal amount of the outstanding Securities written notice prior not to the incurrence of exceed $1,000,000 at any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliatesone time outstanding; and
(xivn) unsecured Indebtedness approved of any Borrower and any Subsidiary not otherwise permitted by this Section in advance in writing by the Holders of at least a majority in an aggregate principal amount of not to exceed $5,000,000 in the outstanding Securitiesaggregate at any time outstanding.
Appears in 3 contracts
Samples: Credit Agreement (Delek US Holdings, Inc.), Credit Agreement (Delek Logistics Partners, LP), Credit Agreement (Delek Logistics Partners, LP)
Indebtedness. Such Obligor The Company will not, and will not permit any of its Subsidiaries toRestricted Subsidiary, to create, incur, assume incur or permit suffer to exist any Indebtedness, whether directly or indirectly, except:
(ia) The Loans, the ObligationsFacility Letters of Credit, the other Obligations under the Loan Documents, (b) Indebtedness of the Company in respect of the New Senior Unsecured Notes; provided that the aggregate principal amount of Indebtedness at any time outstanding under clause (b) shall not exceed $500,000,000 and (c) if the Replacement Facilities Effective Date has not occurred and the Existing Loan Agreement (or backstop facilities in replacement thereof) remains outstanding, Indebtedness thereunder in an aggregate principal amount not to exceed $750,000,000 (it being understood that to the extent the Replacement Facilities are outstanding, such Indebtedness under this clause (c) shall not be outstanding at the same time);
(ii) Indebtedness owing under of the Non-Convertible Credit Facility Loan Documents Company and Permitted Refinancings thereofits Restricted Subsidiaries existing as of the Execution Date and set forth on Schedule 6.18 and additional Indebtedness consisting of working capital facilities, letter of credit facilities, bank guarantee facilities or similar facilities; provided that Indebtedness outstanding in reliance on this clause (ii) shall not in the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereof50,000,000;
(iii) Indebtedness owing under consisting of avals by any of the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that Company or its Restricted Subsidiaries for the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereofbenefit of, and with respect to obligations which are not classified as Indebtedness under of, any of the Fee Letter (as defined Company or its Restricted Subsidiaries which are entered into in the Convertible Credit Facility Agreement)ordinary course of business and consistent with standard business practices;
(iv) Indebtedness existing on August 28, 2015 of any Person that becomes a Restricted Subsidiary after the date hereof (other than the Target and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreementits Restricted Subsidiaries); provided that, in each case, that such Indebtedness is subordinated to existed at the Obligations on terms satisfactory to time such Person becomes a Restricted Subsidiary and was not created in contemplation of or in connection with such Person becoming a Restricted Subsidiary, and the Required Holdersaggregate principal amount of Indebtedness permitted by this Section 6.18(iv) shall not exceed $25,000,000 at any time outstanding;
(v) accounts payable Any Permitted Refinancing Indebtedness in respect of any Indebtedness referred to trade creditors for goods and services and current operating liabilities in clauses (not i)(b), (i)(c) (to the result extent such Permitted Refinancing Indebtedness otherwise complies with the requirements set forth in clause (i)(c) (it being understood such amount may be increased in compliance with the definition of the borrowing of moneyPermitted Refinancing Indebtedness)), (ii), (iii) incurred in the ordinary course of such Obligor’s or any of its 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(iv) above;
(vi) Indebtedness consisting of guarantees resulting arising from (a) the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, or (b) the honoring by any Obligor a bank or any other financial institution of its Subsidiaries a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business;
(vii) Receivables Indebtedness (excluding any intercompany Indebtedness among the Company and its Restricted Subsidiaries) permitted under Section 6.24;
(viii) Indebtedness (other than Indebtedness for borrowed money) arising from agreements of any Obligor to any other Obligor; provided thatthe Company or a Subsidiary providing for indemnification, contribution, earnout, adjustment of purchase price or similar obligations, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by incurred or assumed in connection any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (acquisition or the Equivalent Amount in other currencies) at any timeDisposition otherwise permitted under this Agreement;
(ix) normal Integrated Service Contract Debt in an aggregate amount outstanding at any one time not to exceed $100,000,000;
(x) Indebtedness incurred in the ordinary course of business equipment financingin connection with cash pooling arrangements and cash management incurred in the ordinary course of business in respect of netting services and similar arrangements in each case in connection with cash management and deposit accounts, but only to the extent, with respect to any such arrangements, that the total amount of deposits subject to such arrangements equals or exceeds the total amount of overdrafts or similar obligations subject thereto;
(xi) Indebtedness in respect of performance, surety, customs and appeal bonds, or any indemnity agreement related thereto, arising in the ordinary course of business;
(xii) Other Indebtedness of the Company and the Guarantors; provided that, at the time of the creation, incurrence or assumption of such other Indebtedness and after giving effect thereto, the aggregate amount of all such other Indebtedness does not exceed an amount equal to the greater of $100,000,000 and 2.5% of Total Tangible Assets as shown on or determined in accordance with the most recent financial statements of the Company delivered pursuant to Section 6.1(i) or (ii);
(xiii) Guarantee Obligations in respect of Indebtedness permitted under this Section 6.18; provided that (i) if secured, any Indebtedness that is Guaranteed is subordinated to the collateral therefor consists solely Obligations then any Guarantee Obligations in respect of such Indebtedness shall be subordinated to the Obligations of the applicable Loan Party to the same extent and on terms not materially less favorable to the Lenders as the Indebtedness so Guaranteed is subordinated to the Obligations, and (ii) no such permitted Indebtedness in respect of the Senior Notes, New Senior Unsecured Notes and/or the Existing Loan Agreement (or backstop facilities in replacement thereof) (or in each case any Permitted Refinancing Indebtedness thereof) shall be Guaranteed by any Restricted Subsidiary unless such Restricted Subsidiary has Guaranteed the applicable Obligations pursuant to a Guaranty and (iii) such Guarantee Obligations shall be incurred in compliance with Section 6.15;
(xiv) Intercompany Indebtedness among the Company and its Restricted Subsidiaries in connection with effectuating the Transactions;
(xv) Indebtedness in respect of Hedging Agreements permitted by Section 6.21;
(xvi) Indebtedness among the Company and its Subsidiaries (including between or among Subsidiaries); provided that, (a) any such Indebtedness owing by any Loan Party to any Subsidiary other than a Domestic Loan Party shall be unsecured;
(xvii) So long as no Default or Unmatured Default shall have occurred and be continuing, Indebtedness of the Company and the Guarantors if on a Pro Forma Basis after giving effect to the incurrence or assumption of such Indebtedness the Company’s Total Net Leverage Ratio is less than or equal to the Total Net Leverage Ratio applicable as of such date as set forth in Section 6.22 less 0.25 to 1.00 (provided that if such ratio under Section 6.22 is 4.00 to 1.00 or less no such reduction of 0.25 to 1.0 shall be made), recomputed as of the last day of the most recently ended fiscal quarter of the Company for which financial statements are available under 6.1(i) and (ii);
(xviii) Indebtedness of Foreign Subsidiaries in an aggregate principal amount not to exceed the greater of $100,000,000 and 2.5% of Total Tangible Assets as shown on or determined in accordance with the most recent financial statements of the Company delivered pursuant to Section 6.1(i) or (ii) outstanding at any time;
(xix) Indebtedness of the Company or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capitalized Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets being financedor secured by a Lien on any such assets prior to the acquisition thereof (and not in contemplation thereof), and extensions, renewals and replacements of any such Indebtedness that do not increase the products and proceeds thereof and books and records related thereto, outstanding principal amount thereof; provided that (i) such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement and (ii) the aggregate outstanding principal amount of such Indebtedness does permitted by this clause shall not exceed $2,300,000 (or the Equivalent Amount in other currencies) 20,000,000 at any timetime outstanding;
(xxx) obligations Indebtedness arising from the honoring by a bank or other financial institution of any Obligor or any of its Subsidiaries (i) for indemnificationa check, adjustment of purchase price draft or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred instrument drawn against insufficient funds in the ordinary course of business and business; provided, however, that such Indebtedness is extinguished within five Business Days of a type and amount consistent with past practices of the Obligors and their Subsidiariesincurrence;
(xiixxi) obligations Indebtedness of the Target and its Restricted Subsidiaries permitted to survive the Acquisition or be incurred thereafter and prior to the Domination Agreement Effective Date under the terms of the Acquisition Documentation (and any Permitted Refinancing Indebtedness in respect thereof) not secured by assets of the Company or its Restricted Subsidiaries (other than the Target and its Subsidiaries) or guaranteed by the Company or its Restricted Subsidiaries (other than the Target and its Subsidiaries);
(xxii) Indebtedness consisting of Bi-lateral LC/WC Agreements in an aggregate maximum principal exposure amount at any one time up to $300,000,000 (it being agreed the maximum principal exposure amount in respect of netting servicesBi-lateral LC/WC Agreements constituting revolving loan credit facilities outstanding at any one time shall not exceed $50,000,000 (in each case, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness such cap limitations to be calculated exclusive of any Obligor not otherwise described bank guarantee or the like issued in this Section 9(aconnection with a squeeze-out of any minority shareholders of the Target (i) in accordance with Sec. 327b(3) of the German Stock Corporation Act (Aktiengesetz), (ii) in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount accordance with Sec. 62 of the outstanding Securities written notice prior German Transformation Act (Umwandlungsgesetz) in conjunction with 327b(3) of the German Stock Corporation Act (Aktiengesetz) or (iii) in relation to a squeeze-out pursuant to 39a and 39b of the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its AffiliatesGerman Takeover Code (Wertpapiererwerbs- und Übernahmegesetz)); and
(xivxxiii) Intercompany Indebtedness approved representing consideration for any intercompany Disposition permitted by Section 6.14(xviii). The accrual of interest, the accretion of accreted value, the payment of interest in advance the form of additional Indebtedness, the payment of dividends on Disqualified Equity Interests in writing by the Holders form of at least additional shares of Disqualified Equity Interests, accretion or amortization of original issue discount or liquidation preferences and increases in the amount of Indebtedness outstanding solely as a majority result of fluctuations in aggregate the Exchange Rate or currencies will not be deemed to be an incurrence of Indebtedness for purposes of this Section 6.18. The principal amount of any non-interest bearing Indebtedness or other discount security constituting Indebtedness at any date shall be the principal amount thereof that would be shown on a consolidated balance sheet of the Company dated such date prepared in accordance with GAAP. This Agreement will not treat (1) unsecured Indebtedness as subordinated or junior in right of payment to secured Indebtedness merely because it is unsecured or (2) senior Indebtedness as subordinated or junior in right of payment to any other senior Indebtedness merely because it has a junior priority with respect to the same collateral. Further, for purposes of determining compliance with this Section 6.18, if an item of Indebtedness (or any portion thereof) meets the criteria of one or more of the categories of Indebtedness (or any portion thereof) permitted by this Section 6.18, the Company may, in its sole discretion, classify or divide (and reclassify and redivide) such item of Indebtedness (or any portion thereof) in any manner that complies with this Section 6.18 and will be entitled to only include the amount and type of such item of Indebtedness (or any portion thereof) in one of the above clauses (or any portion thereof) and such item of Indebtedness (or any portion thereof) shall be treated as having been incurred or existing pursuant to only such clause or clauses (or any portion thereof); provided, that all Indebtedness outstanding Securitiesunder this Agreement shall at all times be deemed to have been incurred pursuant to clause (a) of this Section 6.18.
Appears in 3 contracts
Samples: Credit Agreement (Diebold Inc), Credit Agreement (Diebold Inc), Credit Agreement (Diebold Inc)
Indebtedness. Such Obligor will not, and will not permit any of its Subsidiaries to, create, incur, assume or permit to exist any Indebtedness, whether directly or indirectly, except:
(ia) the Obligations;
(iib) Indebtedness owing under existing on the Non-Convertible Credit Facility Loan Documents date hereof and set forth in Part II of Schedule 7.13(a) and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereof;
(iii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required HoldersMajority Lenders;
(c) Indebtedness fully subordinated to the Obligations pursuant to terms acceptable to the Majority Lenders in their reasonable discretion, provided that, in addition, such Indebtedness (i) is governed by documentation containing representations, warranties, covenants and events of default no more burdensome or restrictive than those contained in the Loan Documents, (ii) has a maturity date later than the Maturity Date, (iii) requires no cash payments of principal or interest prior to the Maturity Date, (iv) is governed by terms of subordination in substantially the form attached hereto as Exhibit H or otherwise satisfactory to the Majority Lenders in their reasonable discretion, (v) is unsecured, and (vi) does not restrict the Lenders from amending any of the terms of the Loans hereunder, including extending the Maturity Date or increasing the amount of the Lenders’ Commitments;
(d) Permitted Priority Debt;
(e) 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 such ObligorBorrower’s or any of its Subsidiaries’ such Subsidiary’s 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;
(vif) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(viig) Indebtedness of any Obligor to any other Obligor; provided that, Obligor for intercompany indebtedness in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holdersordinary course of business consistent with past practices;
(viiih) Guarantees by any Obligor of Indebtedness of any other Obligor in an Obligor; provided that the aggregate outstanding principal amount of such Indebtedness, when added to the aggregate principal amount of the outstanding Indebtedness permitted in reliance on Section 9.01(i), does not exceeding exceed $1,150,000 1,000,000 (or the Equivalent Amount in other currencies) at any time;
(ixi) normal course of business equipment financingfinancing and capital lease obligation; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness, when added to the aggregate principal amount of the outstanding Indebtedness permitted in reliance on Section 9.01(h), does not exceed $2,300,000 1,000,000 (or the Equivalent Amount in other currencies) at any time;
(xj) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v)Cure Debt;
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xivk) Indebtedness approved in advance in writing by the Holders Majority Lenders;
(l) Indebtedness in respect of Investments permitted under Section 9.05;
(m) Indebtedness under credit cards used in the ordinary course of business not exceeding $500,000 in the aggregate at least a majority any given time;
(n) Indebtedness in connection with xxxxxx, swaps or collars entered into in the ordinary course of business;
(o) Indebtedness secured by Liens or deposits permitted under Section 9.02(o); and
(p) Other Indebtedness not exceeding $500,000 in the aggregate principal amount of the outstanding Securitiesat any given time.
Appears in 3 contracts
Samples: Term Loan Agreement (ViewRay, Inc.), Term Loan Agreement (ViewRay, Inc.), Term Loan Agreement (ViewRay, Inc.)
Indebtedness. Such Obligor The Borrower will not, and will not permit Guarantor or any of its their respective Subsidiaries to, create, incur, assume or permit suffer to exist or otherwise become or be liable in respect of any Indebtedness, whether directly or indirectlyother than, exceptwithout duplication, the following:
(ia) the ObligationsMortgage Indebtedness and Mezzanine Indebtedness, including customary recourse guaranties provided in connection therewith;
(iib) Unsecured Indebtedness owing under incurred in connection with Permitted Construction Indebtedness, subject to compliance with the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the covenants set forth in Section 7.2.9, not to exceed $100,000,000 in aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereoftime;
(iiic) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement)Borrowing Base Debt;
(d) Indebtedness incurred by Borrower, Guarantor and their respective Subsidiaries in respect of (i) Credit Hedging Agreements and other Hedging Agreements entered into 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 (but, in either case, not with respect to Property acquisitions or in any event recourse to Borrower or Guarantor), (iii) hotel management agreement fees and obligations incurred in the ordinary course of business, and (iv) Indebtedness existing on August 28other trade payables, 2015 and set forth in Schedule 9.01 letter of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated credit reimbursement obligations or guaranties (excluding guarantees of indebtedness for borrowed money or letter of credit reimbursement obligations relating to the Obligations on terms satisfactory to the Required Holders;
(v) accounts payable to trade creditors indebtedness for goods and services and current operating liabilities (not the result of the borrowing of borrowed money) incurred in the ordinary course of such Obligor’s or business, subject to compliance with the covenants set forth in Section 7.2.4.
(e) All Obligations hereunder, including pursuant to the Guaranty and Subsidiary Guaranty;
(f) Indebtedness secured by any Liens permitted pursuant to Section 7.2.3;
(g) Indebtedness existing as of its Subsidiaries’ business the Closing Date and identified in Item 7.1.11 of the Disclosure Schedule and Indebtedness to be incurred on the Hamburg and Paris assets, substantially in accordance with customary terms the term sheets therefor attached to Schedule VI; as well as refinancings of such Hamburg and paid within Paris Indebtedness, subject to compliance with the specified timecovenants set forth in Section 7.2.4, unless contested in good faith by appropriate proceedings and reserved for in accordance with GAAP;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that so long as (i) if securedany excess proceeds are used to pay down the Facility, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount there is no additional recourse to Borrower or Guarantor as a result of such Indebtedness does not exceed $2,300,000 refinancing and (or iii) such refinancing is approved by the Equivalent Amount Administrative Agent in other currencies) at any time;its reasonable discretion; and
(xh) obligations of any Obligor or any of its Subsidiaries Unsecured Indebtedness not otherwise permitted under the foregoing clauses (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisitiona)-(g), or (ii) under guaranties or letters of creditsubject to compliance with the covenants set forth in Section 7.2.9, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority 50,000,000 in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of at any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securitiestime.
Appears in 3 contracts
Samples: Credit Agreement (Strategic Hotels & Resorts, Inc), Credit Agreement (Strategic Hotels & Resorts, Inc), Credit Agreement (Strategic Hotels & Resorts, Inc)
Indebtedness. Such No Obligor will notParty shall create, and will not permit any of its Subsidiaries to, createissue, incur, assume assume, become liable in respect of or permit suffer to exist any Indebtedness, whether directly or indirectlyexcept the following (collectively, except:“Permitted Debt”):
(i) the Obligations;
(ii) Indebtedness owing under the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereof;
(iii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) 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 such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(viia) Indebtedness of any Obligor Party pursuant to any Loan Document;
(b) Indebtedness of any Obligor Party to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required HoldersObligor Party;
(viiic) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds Guarantee Obligations incurred in the ordinary course of business and Performance Guarantees supporting any Project or the Project (under and as defined in the LeConte Credit Agreement); provided that the terms of a type and amount any such Performance Guarantee shall be generally consistent with past practices practice of the Obligors Loan Parties and their SubsidiariesAffiliates and in no event shall any such Performance Guarantee be secured by Collateral;
(xiid) Indebtedness (including Capital Lease Obligations) secured by Liens permitted by Section 6.01(g) in an aggregate principal amount not to exceed $5,000,000 at any one time outstanding;
(e) Indebtedness under any Permitted Commodity Hedge Agreement, Permitted Commodity Agreement, Interest Rate Hedge Agreement or other Hedge Agreement entered into in accordance with Section 6.16;
(f) to the extent constituting Indebtedness, obligations in respect of performance bonds, bid bonds, appeal bonds, surety bonds, completion guarantees, indemnification obligations, obligations to pay insurance premiums, take-or-pay obligations contained in supply agreements and similar obligations incurred in the ordinary course of business and not in connection with Indebtedness for Borrowed Money;
(g) Indebtedness in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business and not in respect of Hedge Agreements;
(h) to the extent constituting Indebtedness, obligations under Contractual Obligations in effect on or as of the Closing Date that are not Indebtedness for Borrowed Money;
(i) Indebtedness in respect of netting services, overdraft protections and other similar cash management products for otherwise in connection with deposit accounts;
(xiiij) Indebtedness of any Loan Party to the Borrower or Holdings reflecting non-cash intercompany allocations of overhead and other parent-level costs in accordance with the Borrower’s or Holdings’ customary allocation practices;
(k) Indebtedness of the Borrower or any other Loan Parties on then current market terms, so long as the proceeds thereof are used to fund Capital Expenditures relating to modifications to one or more Projects to the extent required by Requirements of Law, in an aggregate principal amount not to exceed $15,000,000 at any one time outstanding; provided that such indebtedness has a final maturity date that is not earlier than, and provides for no scheduled payments of principal or mandatory redemption obligations prior to, the date that is one year after the scheduled Maturity Date;
(l) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), the Borrower and the other Loan Parties on then current market terms in an aggregate principal amount not to exceed $5,000,000 at any one time $5,750,000outstanding; provided that Issuer shall give such Indebtedness has a final maturity date that is not earlier than, and provides for no scheduled payments of principal or mandatory redemption obligations prior to, the Holders of at least a majority in aggregate principal amount date that is one year after the scheduled Maturity Date;
(m) unsecured Indebtedness owed by the Borrower or any Guarantor to any other Affiliate of the outstanding Securities written notice prior Borrower; provided that (i) for so long as any Obligations are outstanding, the agreements and/or instruments representing or governing such Indebtedness shall expressly provide that no payments (including with respect to interest and fees) shall be required to be made with respect to such Indebtedness other than with the proceeds of any Restricted Payment otherwise permitted to be made under the terms of this Agreement, (ii) such Indebtedness shall be subject to terms of subordination reasonably acceptable to the incurrence Administrative Agent and (iii) such Indebtedness shall be pledged to the Collateral Agent for the benefit of the Lenders on the same terms and conditions contemplated by the Guarantee and Collateral Agreement with respect to intercompany indebtedness (any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliatesbeing “Permitted Junior Debt”); and
(xivn) Indebtedness approved in advance the nature of customary and commercially reasonable contingent obligations and purchase price or similar adjustments incurred under any agreement to Dispose of property or Equity Interests that is permitted pursuant to Section 6.04 and not in writing connection with Indebtedness for Borrowed Money. To the extent that the creation, incurrence or assumption of any Indebtedness could be attributable to more than one subsection of this Section 6.02, the Borrower may allocate such Indebtedness to any one or more of such subsections and in no event shall the same portion of Indebtedness be deemed to utilize or be attributable to more than one subsection. For the avoidance of doubt, any Indebtedness permitted to be incurred by any Obligor Party, as the Holders case may be, under a specific subsection of at least a majority this Section 6.02 and any Guarantee Obligation in aggregate principal amount respect of such Indebtedness which is also permitted to be incurred by any Obligor Party, as the outstanding Securitiescase may be, under the same subsection of this Section 6.02 shall not count as two separate amounts of Indebtedness for purposes of calculating compliance with the limitations set forth in such subsection.
Appears in 3 contracts
Samples: Credit Agreement (REV Renewables, Inc.), Credit Agreement (REV Renewables, Inc.), Credit Agreement (REV Renewables, Inc.)
Indebtedness. Such Obligor Subject to Section 8.2, no Credit Party will, nor will not, and will not it permit any of its Subsidiaries to, contract, create, incur, assume or permit to exist any Indebtedness, whether directly or indirectly, exceptother than:
(ia) Indebtedness arising under this Credit Agreement and the Obligationsother Credit Documents;
(iib) Indebtedness owing under the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount in respect of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereof;
(iii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) current 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 such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds accrued expenses incurred in the ordinary course of business and of a type to the extent not current, accounts payable and amount consistent accrued expenses that are subject to bona fide dispute and against which adequate reserves have been established in accordance with past practices of the Obligors and their SubsidiariesGAAP;
(xiic) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accountsIndebtedness owing by a Credit Party to another Credit Party;
(xiiid) unsecured purchase money Indebtedness (including Capital Leases) to finance the purchase of fixed assets (including equipment); provided that (i) the sum of (A) the total amount of all such Indebtedness outstanding for the Credit Parties and their Subsidiaries plus (B) the aggregate amount of Synthetic Leases outstanding pursuant to clause (e) below shall not exceed an aggregate principal amount of $30,000,000 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 excess of the principal balance outstanding thereon at the time of such refinancing;
(e) Indebtedness comprised of Synthetic Leases; provided that the sum of (i) the total amount of all such Indebtedness for the Credit Parties and their Subsidiaries outstanding plus (ii) the aggregate amount of purchase money Indebtedness outstanding pursuant to clause (d) above shall not exceed an aggregate principal amount of $30,000,000 at any one time outstanding.
(f) Indebtedness owing by a Foreign Subsidiary to another Foreign Subsidiary or to a Credit Party;
(g) Indebtedness of any Obligor not otherwise described the Foreign Subsidiaries in this Section 9(a), addition to clause (f) above in an aggregate amount not to exceed $25,000,000 in the aggregate at any one time $5,750,000; provided that Issuer shall give outstanding;
(h) reimbursement obligations with respect to draws under letters of credit issued to (i) provide for, or to ensure, the Holders of at least a majority in aggregate principal amount payment of the outstanding Securities written notice prior to the incurrence purchase prices of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer goods acquired by a Credit Party or any of its AffiliatesSubsidiaries or (ii) support obligations of a Credit Party or any of its Subsidiaries provided that such reimbursement obligations are paid in full on the dates the financial institutions that issued such letters of credit pay the draws;
(i) Guaranty Obligations permitted by Section 8.2;
(j) Indebtedness evidenced by Hedging Agreements entered into in the ordinary course of business and not for speculative purposes;
(k) Indebtedness set forth on Schedule 8.1(k); and
(xivl) Indebtedness approved in advance in writing by other unsecured Funded Debt of a Credit Party; provided that the Holders of at least a majority in aggregate principal amount of such unsecured Funded Debt, if deemed included in the outstanding Securitiescalculation of the Leverage Ratio as of the last day of the most recently ended fiscal quarter, would not cause the Leverage Ratio to exceed 2.25 to 1.0 on such date.
Appears in 3 contracts
Samples: Five Year Revolving Credit Agreement (Polaris Industries Inc/Mn), Credit Agreement (Polaris Industries Inc/Mn), Credit Agreement (Polaris Industries Inc/Mn)
Indebtedness. Such Obligor No Restricted Person will not, and will not permit in any of its Subsidiaries to, create, incur, assume manner owe or permit to exist any Indebtedness, whether directly or indirectly, be liable for Indebtedness except:
(ia) the Obligations;
(iib) Indebtedness owing under the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereofof any Restricted Person (other than ETP GP or ETP LLC) to any other Restricted Person (other than ETP GP or ETP LLC); provided that the aggregate outstanding principal amount of provided, (i) all such Indebtedness shall not exceed at any time the sum of $35,000,000 be evidenced by promissory notes and the amount of interest thereon compounded and added all such notes shall be subject to a first priority Lien pursuant to the principal thereof;
Pledge and Security Agreement, (iiiii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any time such case is reasonably satisfactory to the sum Administrative Agent; and (iii) any payment by any Restricted Person that is a Guarantor under any guaranty of $69,095,709 and the Obligations shall result in a pro rata reduction of the amount of interest thereon compounded and added any such Indebtedness owed by such Guarantor to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement)Borrower or to any Restricted Subsidiary that is a Guarantor for whose benefit such payment is made;
(ivc) Indebtedness existing on August 28in respect of bonds that are performance bonds, 2015 bid bonds, appeal bonds, surety bonds and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided thatsimilar obligations, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred case provided in the ordinary course of such Obligor’s or any of its Subsidiaries’ business in accordance with customary terms business, including those incurred to secure health, safety and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for in accordance with GAAP;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries environmental obligations in the ordinary course of business;
(viid) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for otherwise in connection with deposit accounts;
(xiiie) unsecured Indebtedness of (i) ETP LLC arising by operation of law as a result of ETP LLC being the general partner of ETP GP and (ii) ETP GP arising by operation of law as a result of ETP GP being the general partner of ETP;
(f) Indebtedness in respect to future payment for non-competition covenants and similar payments under agreements governing a Permitted Acquisition by a Restricted Person not to exceed at any time $5,000,000;
(g) Indebtedness of any Obligor Person that becomes a Restricted Subsidiary after the date hereof incurred prior to the time such Person becomes a Subsidiary, not otherwise described to exceed at any time $15,000,000; provided that (i) such Indebtedness is not created in this Section 9(a)contemplation of such Person becoming a Subsidiary and (ii) such Indebtedness is not assumed or Guaranteed by any other Restricted Person; and
(h) other Indebtedness of the Borrower (and, without duplication, Guarantees thereof by Subsidiaries of the Borrower who are Guarantors of the Obligations hereunder) in an aggregate principal amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securities20,000,000.
Appears in 3 contracts
Samples: Credit Agreement (Energy Transfer Equity, L.P.), Credit Agreement (Energy Transfer Equity, L.P.), Credit Agreement (Energy Transfer Equity, L.P.)
Indebtedness. Such Obligor The Company will not, and will not permit any of its Subsidiaries to, create, incur, assume become or permit to exist remain obligated for any Indebtedness, whether directly or indirectly, except:
(i) the Obligations;
(iia) Indebtedness owing to each holder of a Note; (b) Indebtedness of the Company under Capital Leases for office machinery in existence as of the Closing Date not to exceed in the aggregate $100,000; (c) Indebtedness of the Company arising under the Non-Convertible Credit Facility Senior Loan Documents Agreement or any replacement or refinancing thereof in a principal amount not to exceed $10,000,000 in the aggregate; (d) Indebtedness of the Company arising under the Senior Notes; (e) Indebtedness existing as of the Closing Date and Permitted Refinancings listed on Schedule 10.2; (f) Indebtedness (including purchase money indebtedness) incurred in connection with the acquisition, construction or improvement of fixed or capital assets (whether pursuant to a loan or a Capital Lease) in an aggregate amount not 17 exceeding $1,000,000 during any single fiscal year of the Company and $3,000,000 in the aggregate during the term of this Agreement at any time outstanding, and any renewals or refinancing of such Indebtedness, on substantially the same terms or terms that are not more burdensome on the Company as in effect on the date of incurrence of such Indebtedness and otherwise in compliance with this Agreement, provided that no Default or Event of Default has occurred and is continuing, both before and after giving effect to the incurrence, renewal or refinancing thereof; provided provided, further, that the aggregate outstanding principal amount of all such renewed or refinanced Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereof;
(iii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such the Indebtedness so renewed or refinanced and shall not in no event exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter caps set forth above; (as defined in the Convertible Credit Facility Agreement);
(ivg) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 respect of Hedging Contracts authorized as required under Section 8.9 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) accounts payable to trade creditors for goods Senior Loan Agreement and services and current operating liabilities (not the result of the borrowing of money) incurred Hedging Contracts entered into in the ordinary course of such Obligor’s or any business related loans from the Federal Home Loan Bank of its Subsidiaries’ business in accordance with customary terms Indiana for interest rate management and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved not for in accordance with GAAP;
speculative purposes; (vih) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated Guaranty Obligations to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financingextent permitted under Section 10.7; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business with respect to surety and of a type appeal bonds, performance and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections return-of-money bonds and other similar cash management products obligations or to or for deposit accounts;
the benefit of any Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, all in the ordinary course of business in accordance with customary industry practices, in amounts and for the purposes customary in the Company’s industry; (xiiij) additional unsecured Indebtedness of any Obligor the Company and its Subsidiaries not otherwise described above, not in this Section 9(a), in an aggregate amount not to exceed at any time excess of $5,750,000; provided that Issuer shall give the Holders of at least a majority 1,500,000 in aggregate principal amount at any one time outstanding, provided that no Default or Event of Default shall have occurred and be continuing at the outstanding Securities written notice prior to time of incurring such Indebtedness or shall result from the incurrence of any such Indebtedness under this Section 9(a)(xiiiIndebtedness; and (k) owing to any director Loans from the Federal Home Loan Bank of Indiana issued or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by created for the Holders of at least a majority in aggregate principal amount account of the outstanding Securities.Insurance Subsidiaries. 18
Appears in 2 contracts
Samples: Note Purchase Agreement (Conifer Holdings, Inc.), Note Purchase Agreement (Conifer Holdings, Inc.)
Indebtedness. Such Obligor Parent and the Company will not, and will not permit any of its the Company’s Subsidiaries to, create, incur, assume or permit suffer to exist any Indebtedness, whether directly or indirectly, except:
(ia) Indebtedness incurred pursuant to this Agreement and the Obligationsother Credit Documents;
(iib) Indebtedness owing under outstanding on the Non-Convertible Credit Facility Loan Documents Effective Date and listed on Schedule 10.04 and any Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Refinancing Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal in respect thereof;
(iiic) (i) Indebtedness owing under Interest Rate Protection Agreements entered into with respect to other Indebtedness permitted under this Section 10.04 and (ii) under Other Hedging Agreements, in either case so long as the Convertible Credit Facility Loan Documents entering into of such Interest Rate Protection Agreements or Other Hedging Agreements are bona fide hedging activities and are not for speculative purposes;
(d) Indebtedness of the Company and its Subsidiaries evidenced by Capitalized Lease Obligations and purchase money Indebtedness and any Permitted Refinancings thereof; provided that the Refinancing in respect thereof not to exceed $5,000,000 in aggregate outstanding principal amount of for all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added incurred pursuant to the principal thereof, and Indebtedness under the Fee Letter this clause (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) 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 such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currenciesd) at any time;
(ixe) normal course Indebtedness constituting Intercompany Loans to the extent permitted by Sections 10.05(h) and (q);
(f) Indebtedness consisting of business equipment financing; provided that guaranties (i) if secured, by the collateral therefor consists solely Borrowers of the assets being financed, the products each other’s Indebtedness and proceeds thereof lease and books and records related thereto, other contractual obligations permitted under this Agreement and (ii) the aggregate outstanding principal amount by non-Credit Parties of such each other’s Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in and lease and other currencies) at any timecontractual obligations permitted under this Agreement;
(xg) obligations [Reserved];
(h) Indebtedness arising from the honoring by a bank or other financial institution of any Obligor a check, draft or any similar instrument drawn against insufficient funds in the ordinary course of business, so long as such Indebtedness is extinguished within three Business Days of its Subsidiaries incurrence;
(i) for indemnification, adjustment Indebtedness of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of Company and its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations Subsidiaries with respect to performance guaranties bonds, surety bonds, appeal bonds, customs bonds, worker’s compensation claims and surety bonds incurred similar obligations, required in the ordinary course of business and or in connection with the enforcement of a type and amount consistent with past practices rights or claims of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer Company or any of its Affiliates; and
Subsidiaries or in connection with judgments that do not result in a Default or an Event of Default (xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount including guarantees or obligations of the outstanding Securities.Company or any Subsidiary with respect to letters of credit supporting such performance, appeal, customs or surety bonds or workers’ compensation claims);
Appears in 2 contracts
Samples: Abl Credit Agreement (J.Jill, Inc.), Abl Credit Agreement (J.Jill, Inc.)
Indebtedness. Such Obligor will notCreate, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness of EMS and its Subsidiaries listed on Schedule 8.03;
(c) the Lux SNC Loan, the UK Acquisition Company Lux Loan and any other intercompany Indebtedness permitted under Section 8.02;
(d) obligations (contingent or otherwise) of any Borrower 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 will not permit 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 (including obligations in respect of its Subsidiaries toCapital Leases or Synthetic Leases) hereafter incurred by EMS or the Canadian Borrower to 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 US$2,000,000 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 excess of the principal balance outstanding thereon at the time of such refinancing;
(f) other unsecured Indebtedness of EMS and the Canadian Borrower not to exceed US$5,000,000 in the aggregate at any one time outstanding;
(g) other unsecured Indebtedness of UK Acquisition Company not to exceed US$1,000,000 in the aggregate at any one time outstanding; and
(h) secured or unsecured Indebtedness of EMS and the Canadian Borrower assumed in connection with a Permitted Acquisition so long as such Indebtedness (i) was not incurred in anticipation of or in connection with the respective Permitted Acquisition and (ii) does not exceed $10,000,000 in the aggregate at any time outstanding. Notwithstanding the foregoing, neither Lux SNC, EMS Lux SARL, UK Acquisition Company, UK Target, nor any LXE Foreign Subsidiary shall create, incur, assume or permit suffer to exist any Indebtedness, whether directly or indirectly, except:
(i) the Obligations;
(ii) Indebtedness owing under the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereof;
(iii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) 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 such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
than (x) Lux SNC’s obligations of under the Lux SNC Loan, (y) UK Acquisition Company’s obligations under the UK Acquisition Company Lux Loan and (z) any Obligor or any of its Subsidiaries Indebtedness permitted by clauses (ic) for indemnification, adjustment of purchase price or similar obligations and (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (iig) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);above.
(xil) contingent obligations with respect to performance guaranties and surety bonds incurred Clause (c) in the ordinary course of business and of a type and amount consistent with past practices Section 8.04 of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not Credit Agreement is hereby amended to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securities.read as follows:
Appears in 2 contracts
Samples: Credit Agreement (Ems Technologies Inc), Credit Agreement (Ems Technologies Inc)
Indebtedness. Such Obligor will not, and will Borrower shall not (nor shall it permit any of its Consolidated Subsidiaries to, ) ) (x) create, incur, assume or permit to exist any Indebtednessexist, whether directly or indirectly, any Priority Debt or (y) assume, Guarantee, become liable as a surety, endorse, contingently agree to purchase, or otherwise be or become liable, directly or indirectly (including, but not limited to, by means of a maintenance agreement, an asset or stock purchase agreement, or any other agreement designed to ensure any creditor against loss), for or on account of the obligation of any Person, except:
: (ia) by the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of Borrower’s or any Consolidated Subsidiary’s business; (b) Guarantees of obligations pursuant to a Permitted Inventory and Repo Finance Transaction; (c) Guarantees made from time to time, whether in existence on the Closing Date or made subsequent thereto, among Borrower and its Consolidated Subsidiaries; provided, that Guarantees of obligations of CHS Capital by Borrower and its Consolidated Subsidiaries (other than CHS Capital) shall not exceed in the aggregate (x) $1,100,000,000 minus (y) the Obligations;
amount of loans or advances by Borrower and such Consolidated Subsidiaries to CHS Capital under Section 10.8(l)(iii) and other Investments by Borrower and such Consolidated Subsidiaries in CHS Capital under Section 10.8(g); (iid) Indebtedness owing Guarantees made from time to time (including, for the avoidance of doubt, guarantees of producer loans and guarantees of loans to member cooperatives), whether in existence on the Closing Date or made subsequent thereto, by Borrower and its Consolidated Subsidiaries in the ordinary course of their respective businesses with respect to the liabilities and obligations of other Persons (other than CHS Capital), provided, however, that the aggregate amount of all indebtedness guaranteed under this clause (d) shall not exceed $1,100,000,000 in the Non-Convertible Credit Facility Loan Documents aggregate; and Permitted Refinancings thereof; provided that (e) any Priority Debt so long as after giving effect thereto the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereof;
(iii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) 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 such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness Priority Debt does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations 20% of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securities.Consolidated Net Worth..
Appears in 2 contracts
Samples: Credit Agreement (CHS Inc), Credit Agreement (CHS Inc)
Indebtedness. Such Obligor will Borrower shall not, and will shall not permit any of its Subsidiaries to, incur, create, incurassume, assume become or be liable in any manner with respect to, or permit to exist exist, any Indebtedness, whether directly obligations or indirectlyindebtedness, except:
(ia) the Obligations;
(iib) Indebtedness owing under trade obligations and normal accruals in the Non-Convertible Credit Facility Loan Documents ordinary course of business not yet due and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount payable, or with respect to which Borrower or any of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and its Subsidiaries is contesting in good faith the amount or validity thereof by appropriate proceedings diligently pursued and available to Borrower or any of interest thereon compounded its Subsidiaries and added with respect to the principal thereofwhich adequate reserves have been set aside on its books;
(iiic) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added purchase money indebtedness (including Capital Leases) to the principal thereof, and Indebtedness under the Fee Letter extent not incurred or secured by liens (as defined including Capital Leases) in the Convertible Credit Facility violation of any other provision of this Agreement);
(ivd) Indebtedness existing rental and other payments under operating leases which are not sale and leaseback transactions;
(e) indebtedness of Borrower or any of its Subsidiaries entered into in the ordinary course of business pursuant to any Bank Product;
(f) indebtedness in respect of performance, surety or appeal bonds (including with respect to those described on August 28Schedule 9.9 to the Information Certificate), 2015 workers’ compensation claims, unemployment insurance, health, disability and set forth other employee benefits or property, casualty or liability insurance (including any reimbursement obligations in Schedule 9.01 of connection with the Non-Convertible Credit Facility Agreement; provided thatforegoing), in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) 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 business; provided, that, upon Lender’s request, Lender shall have received true, correct and complete copies of all material agreements, documents or instruments evidencing or otherwise related to such Obligor’s or any of its Subsidiaries’ business in accordance with customary terms indebtedness, as duly authorized, executed and paid within delivered by the specified time, unless contested in good faith by appropriate proceedings and reserved for in accordance with GAAPparties thereto;
(vig) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of businessMaple Guarantee;
(viih) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated indebtedness described on Schedule 9.9 to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its AffiliatesInformation Certificate; and
(xivi) Indebtedness approved in advance in writing the guaranty by the Holders of at least a majority in aggregate principal amount Borrower and Maple of the outstanding Securitiesindebtedness owing with respect to the New Notes and the New Notes Indenture and any refinancing, refunding, extensions, renewals, issuances or replacements thereof to the extent permitted by Section 9.17(g) hereof.
Appears in 2 contracts
Samples: Loan and Security Agreement (Vector Group LTD), Loan and Security Agreement (Vector Group LTD)
Indebtedness. Such Obligor will Company shall not, and will shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or permit to exist guaranty, or otherwise become or remain directly or indirectly liable with respect to, any Indebtedness, whether directly or indirectly, except:
(i) Company may become and remain liable with respect to the Obligations;
(ii) Company and its Domestic Subsidiaries may become and remain liable with respect to Contingent Obligations permitted by subsection 7.4 and, upon any matured obligations actually arising pursuant thereto, the Indebtedness owing under corresponding to the Non-Convertible Credit Facility Loan Documents Contingent Obligations so extinguished;
(iii) Company and Permitted Refinancings thereofits Domestic Subsidiaries may become and remain liable with respect to Indebtedness in respect of Capital Leases incurred at the time of, or within ninety days after, the acquisition of the related property (it being understood that the completion of the construction or development of express recovery or similar units, additional beds at existing Facilities or new Facilities shall constitute the acquisition of property) aggregating not in excess of $25,000,000 at any one time; provided that the aggregate outstanding principal amount of all such Indebtedness represented by (x) Converted Capital Leases or (y) other Capital Leases that are assumed in connection with Permitted Acquisitions, shall not exceed at any time be included in calculating the sum of $35,000,000 and the aggregate amount of interest thereon compounded and added Indebtedness outstanding in respect of Capital Leases for the purposes of this subsection 7.1(iii) if, after giving effect to such conversion or assumption, Company is in Pro Forma Compliance with the principal thereof;
(iii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement)maximum Consolidated Leverage Ratio permitted by subsection 7.6B less 0.25x;
(iv) Company may become and remain liable with respect to Indebtedness existing on August 28to any Subsidiary, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreementany Subsidiary Guarantor may become and remain liable with respect to Indebtedness to Company or any Subsidiary Guarantor; provided that, that (a) a security interest in each caseall such intercompany Indebtedness shall have been granted to Collateral Agent for the benefit of Beneficiaries and (b) if such intercompany Indebtedness is evidenced by a promissory note or other instrument, such Indebtedness is subordinated promissory note or instrument shall have been pledged to Administrative Agent pursuant to the Obligations on terms satisfactory to the Required HoldersSecurity Agreement;
(v) accounts payable to trade creditors for goods Company and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of such Obligor’s or any of its Subsidiaries’ business , as applicable, may remain liable with respect to Indebtedness described 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 GAAPSchedule 7.1 annexed hereto;
(vi) Company may become and remain liable with respect to (x) the Senior Subordinated Notes and any Permitted Refinancing Indebtedness; and (y) unsecured Subordinated Indebtedness consisting on terms and conditions substantially the same as the Senior Subordinated Notes or otherwise reasonably satisfactory to Administrative Agent the proceeds of guarantees resulting from endorsement which shall be used solely to (1) refinance Indebtedness previously incurred under this subsection 7.1(vi)(y), (2) refinance Indebtedness outstanding under this Agreement or (3) finance Permitted Acquisitions (which financing may occur as a repayment of negotiable instruments a Revolving Loan, the purpose of which Revolving Loan was to finance a Permitted Acquisition, or which financing may be used to finance Permitted Acquisitions occurring within 180 days after the incurrence of such Indebtedness if the Net Indebtedness Proceeds thereof are deposited in a separate Deposit Account or Securities Account (the “Designated Account”) subject to a Control Agreement until such time as they are used for collection by such Permitted Acquisition (the Net Indebtedness Proceeds so deposited being referred to herein as “Designated Restricted Cash”); provided that (A) the maximum principal amount of Indebtedness permitted pursuant to this subsection 7.1(vi)(y) at any Obligor or time shall not exceed $300,000,000 and (B) any of its Subsidiaries Designated Restricted Cash that remains in the ordinary course Designated Account on the date 180 days after of businessthe incurrence of the related Indebtedness shall be used to prepay Indebtedness outstanding under this Agreement;
(vii) Company or a Subsidiary of Company may become and remain liable with respect to Indebtedness of any Obligor Person assumed in connection with a Permitted Acquisition and a Person that becomes a direct or indirect wholly-owned Subsidiary of Company as a result of a Permitted Acquisition may remain liable with respect to any other ObligorIndebtedness existing on the date of such acquisition; provided that, in each case, that such Indebtedness is unsecured not created in anticipation of such acquisition and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (65,000,000, and an additional $30,000,000 of such Indebtedness, if after giving effect to the assumption of any such Indebtedness, the Consolidated Leverage Ratio, calculated on a Pro Forma Basis, is equal to or the Equivalent Amount in other currencies) at any timeless than 3.00:1.00;
(xviii) obligations Indebtedness of any Obligor Company or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting servicesinsurance premiums payable to Fountain View Reinsurance, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), Inc. in an aggregate amount not to exceed $35,000,000;
(ix) Indebtedness of Company to directors, employees and officers of any Loan Party for the purpose of purchasing from such directors, employees and officers Equity Interests of Company; provided that the amount of the annual principal payments with respect to such Indebtedness, together with all Restricted Junior Payments made pursuant to subsection 7.5(ii)(d), shall not at any time $5,750,000; provided that Issuer shall give exceed the Holders amounts of at least a majority in aggregate principal amount Restricted Junior Payments permitted pursuant to subsection 7.5(ii)(d);
(x) Indebtedness of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer Company or any of its AffiliatesSubsidiaries to sellers in connection with an exercise of a purchase option under a lease with respect to any existing Facility or a Permitted Acquisition in an amount not to exceed 60% of the purchase price or total consideration paid with respect to such purchase option or Permitted Acquisition; provided that, except to the extent permitted by subsection 7.2A(v), such Indebtedness shall be unsecured and subordinated in right of payment to the Obligations (including any guaranty thereof) on terms and conditions reasonably satisfactory to Administrative Agent; and
(xivxi) Company and its Domestic Subsidiaries may become and remain liable with respect to other Indebtedness approved in advance in writing by the Holders of at least a majority in an aggregate principal amount of the outstanding Securitiesnot to exceed $25,000,000 at any time outstanding.
Appears in 2 contracts
Samples: Amendment and Restatement Agreement (Skilled Healthcare Group, Inc.), Amendment and Restatement Agreement (Skilled Healthcare Group, Inc.)
Indebtedness. Such Obligor will not, and will not permit any of its Subsidiaries toIncur, create, incur, assume or permit to exist any Indebtednessexist, whether directly or indirectly, any Indebtedness, except:
(a) Indebtedness incurred under this Agreement and the other Loan Documents;
(i) Indebtedness of Borrower and its Subsidiaries outstanding on the Obligations;
Restatement Effective Date and listed on Schedule 6.01(b) to this Agreement and (ii) Indebtedness owing under the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereof;
(iiic) Indebtedness owing of Borrower and its Subsidiaries under Hedging Obligations with respect to interest rates, foreign currency exchange rates or commodity prices, in each case not entered into for speculative purposes; provided that if such Hedging Obligations relate to interest rates, (i) such Hedging Obligations relate to payment obligations on Indebtedness otherwise permitted to be incurred by the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that (ii) the aggregate outstanding notional principal amount of all such Indebtedness shall Hedging Obligations at the time incurred does not exceed at any time the sum of $69,095,709 and the principal amount of interest thereon compounded and added the Indebtedness to the principal thereof, and which such Hedging Obligations relate;
(d) Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreementpermitted by Section 6.04(f);
(ive) Indebtedness existing on August 28, 2015 of Borrower and set forth its Subsidiaries in Schedule 9.01 respect of the Non-Convertible Credit Facility Agreement; provided thatPurchase Money Obligations and Capital Lease Obligations, in each case, such Indebtedness is subordinated an aggregate amount not to the Obligations on terms satisfactory to the Required Holdersexceed $10.0 million at any time outstanding;
(v) 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 such Obligor’s or any of its 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;
(vif) Indebtedness consisting in respect of bid, workers’ compensation claims, self-insurance obligations, bankers’ acceptances, performance or surety, appeal or similar bonds issued for the account of and completion guarantees resulting from endorsement of negotiable instruments for collection and other similar obligations provided by any Obligor or any of its Subsidiaries Company in the ordinary course of business;
(viig) Contingent Obligations of Borrower and its Subsidiaries in respect of Indebtedness otherwise permitted under this Section 6.01;
(h) Indebtedness arising from the honoring by a bank or other financial institution of any Obligor to any other Obligora check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided thatprovided, in each casehowever, that such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holdersextinguished within five Business Days of incurrence;
(viiii) Guarantees by any Obligor Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business;
(j) Acquired Indebtedness of any other Obligor in an aggregate principal amount not exceeding to exceed $1,150,000 (or the Equivalent Amount in other currencies) 25.0 million at any timetime outstanding;
(ixk) normal course Indebtedness incurred by Borrower or any Subsidiary to finance the payment of business equipment financing; provided that (i) if secured, the collateral therefor consists solely insurance premiums of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (Borrower or the Equivalent Amount in other currencies) at any timeits Subsidiaries;
(xl) obligations of any Obligor or any of its Subsidiaries (iunsecured intercompany Indebtedness permitted pursuant to Section 6.04(f) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(vm);
(xim) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), Borrower and its Subsidiaries in an aggregate amount not to exceed $50.0 million at any time outstanding, of which $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates10.0 million may be secured Indebtedness; and
(xivn) Indebtedness approved of Holdings or Borrower consisting of notes issued as described in advance Section 6.08(b), provided that (i) such Indebtedness shall be subordinated to the Obligations in writing by a manner reasonably satisfactory to the Holders Administrative Agent, (ii) such Indebtedness shall have no covenants or events of at least a majority default other than in aggregate principal amount respect of the outstanding Securitiesobligation to make scheduled principal and interest payments and (iii) the interest rate applicable to such Indebtedness shall not exceed the Base Rate applicable at the time of issuance of such Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement (Mattress Firm Holding Corp.), Credit Agreement (Mattress Firm Holding Corp.)
Indebtedness. Such Obligor will not, and will Borrower shall not permit any of its Subsidiaries to, create, incur, assume or permit suffer to exist any Indebtedness, whether directly or indirectlyexcept the following (collectively, except:
"PERMITTED INDEBTEDNESS"): (i) the Obligations;
(iia) Indebtedness owing under the Non-Convertible Credit Facility Loan Documents Documents, (b) any Indebtedness set forth on Schedule 7.2; (c) Capitalized Lease Obligations incurred after the Closing Date and Permitted Refinancings thereof; provided Indebtedness incurred after the Closing Date pursuant to purchase money Liens permitted by Section 7.3(e), provided, that the aggregate amount thereof outstanding principal amount of all such Indebtedness at any time shall not exceed $2,000,000.00, (d) Subordinated Debt provided, that the aggregate amount thereof outstanding at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereof;
(iii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof2,000,000.00, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(ve) accounts payable to trade creditors for goods and services and current operating liabilities expenses which are not aged more than ninety (not 90) calendar days from the result of billing date or sixty (60) calendar days from the borrowing of money) incurred in the ordinary course of such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided thatdue date, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds case incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower's independent accountants shall have been established to the satisfaction of Agent in its Permitted Discretion, (f) refinancings of items under clauses (c) and (d) above to the extent such refinancings satisfy the requirements of said clauses, and (g) the endorsement of negotiable instruments for deposit or collection or similar transactions, in each case, in the ordinary course of business. Except to the extent permitted pursuant to applicable Subordination Agreements, Borrower shall not (x) make any payment of any part or all of any Subordinated Debt, (y) repurchase, redeem, prepay or retire any instrument evidencing any such Subordinated Debt prior to maturity, or (z) enter into any agreement (oral or written) which could in any way be construed to amend, modify or alter in a type and amount consistent manner adverse to Agent as determined by Agent in its Permitted Discretion or to terminate any one or more instruments or agreements evidencing or relating to any Subordinated Debt, but rather Borrower shall make payments on Subordinated Debt only in accordance with past practices the provisions of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securitiesapplicable Subordination Agreements.
Appears in 2 contracts
Samples: Revolving Credit and Security Agreement (Redenvelope Inc), Revolving Credit and Security Agreement (Redenvelope Inc)
Indebtedness. Such Obligor will not, and will not permit any of its Subsidiaries to, No Company shall create, incur, assume assume, or permit to exist any Indebtedness, whether directly or indirectly, except:
(a) (i) Indebtedness evidenced by this Agreement and the Obligations;
other Loan Documents, and (ii) Indebtedness owing under of the Non-Convertible Credit Facility Loan Documents and Obligors evidenced by any Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereofRefinancing Notes;
(iiib) the Indebtedness owing under (i) described on Schedule 6.1 (to be updated on the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that Initial Funding Date, as applicable) or (ii) outstanding on the Signing Date not in excess of $1,000,000 in the aggregate (when taken together with all other Indebtedness outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereofin reliance on this clause (b)(ii)), and any Refinancing Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement)respect of such Indebtedness;
(ivc) unsecured intercompany Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 among any of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required HoldersCompanies permitted under Section 6.5;
(v) 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 such Obligor’s or any of its 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;
(vid) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor Capital Lease Obligations and Indebtedness incurred to finance the acquisition, construction or any of its Subsidiaries in the ordinary course of business;
(vii) Indebtedness improvement of any Obligor to asset, and any other Obligor; provided that, Refinancing Indebtedness in each case, respect of such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financingIndebtedness; provided that (i) if secured, such Indebtedness when incurred does not exceed the collateral therefor consists solely purchase price or cost of the assets being financed, the products and proceeds thereof and books and records related theretoconstruction of such asset, and (ii) the aggregate outstanding principal amount of such Indebtedness permitted by this clause (d) does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any timetime the greater of (x) $50,000,000 and (y) 20.0% of Applicable EBITDA;
(e) Indebtedness arising in connection with Hedging Agreements permitted by Section 6.13;
(f) Indebtedness incurred in the Ordinary Course of Business under surety and appeal bonds, performance bonds, bid bonds, appeal bonds and similar obligations;
(g) unsecured Indebtedness in respect of earn-outs, contingent liabilities in respect of any indemnification obligation, expense reimbursement obligations, adjustments of purchase price, or similar obligations owing to sellers of assets or Equity Interests to any Obligor or its Subsidiaries that are incurred in connection with the consummation of one or more Permitted Acquisitions or other similar permitted Investments;
(h) Indebtedness incurred in the Ordinary Course of Business in respect of Cash Management Services and netting services, automatic clearinghouse arrangements, and other cash management and similar arrangements in the Ordinary Course of Business and any Guarantees thereof 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;
(i) endorsements of instruments or other payment items for deposit;
(j) Subordinated Indebtedness in an aggregate principal amount not exceeding at any time the greater of (x) $50,000,000 and (y) 20.0% of Applicable EBITDA;
(k) Indebtedness under any Receivables Financing Facility in an aggregate Attributed Principal Amount not exceeding $350,000,000; provided that the Receivables Financier has executed and delivered the Receivables Intercreditor Agreement;
(l) other unsecured Indebtedness in an aggregate outstanding principal amount not exceeding at any time greater of (x) $50,000,000 and (y) 20.0% of Applicable EBITDA;
(m) Indebtedness consisting of (i) Guarantees arising with respect to customary indemnification obligations to purchasers in connection with Dispositions permitted under Section 6.4 and (ii) Guarantees with respect to Indebtedness of any Company, to the extent that the Person that is obligated under such Guarantee could have incurred such underlying Indebtedness pursuant to this Agreement or it constitutes an Investment permitted under Section 6.5;
(n) Indebtedness incurred by any Obligor or any of its their Subsidiaries in respect of letters of credit, bank guarantees, banker’s acceptances, warehouse receipts or similar instruments issued or created in the Ordinary Course of Business, including in respect of workers’ compensation claims, employee severance and employment agreements, health, disability or other employee benefits or property, casualty or liability insurance, unemployment or other insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(o) to the extent constituting Indebtedness, obligations in respect of completion guarantees, standby letters of credit and warranty and contractual service obligations of a like nature, trade letters of credit and documentary letters of credit and similar bonds or guarantees provided in the Ordinary Course of Business in connection with the construction or build out of any owned or leased real property;
(p) to the extent constituting Indebtedness, contingent obligations arising under indemnity agreements to title insurance companies to cause such title insurers to issue title insurance policies in the Ordinary Course of Business with respect to real property of Borrowers or any of their Subsidiaries;
(q) customer deposits and advance payments received in the Ordinary Course of Business from customers for goods purchased;
(r) Indebtedness representing deferred compensation or similar arrangements to employees of any Borrower or any Subsidiary incurred in the Ordinary Course of Business;
(s) Indebtedness consisting of (i) for indemnification, adjustment the financing of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition)insurance premiums, or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiariestake-or-pay obligations contained in supply arrangements, in each case, in connection with transactions permitted under Section 9(c)(v)the Ordinary Course of Business;
(xit) contingent obligations with respect Indebtedness incurred by a non-Obligor in an aggregate principal amount not to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices exceed, at any time of the Obligors incurrence hereof, the greater of (x) $50,000,000 and their Subsidiaries(y) 20% of Applicable EBITDA;
(xiiu) obligations Indebtedness supported by a letter of credit (other than the Letters of Credit) in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate a principal amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior 5,000,000;
(v) Ratio Debt, so long as (i) immediately after giving effect to the incurrence of such Ratio Debt and the use of proceeds thereof (excluding for purposes of “cash netting” the proceeds of any such Indebtedness under this Ratio Debt), the Consolidated Net Leverage Ratio (calculated on a pro forma basis as of the end of the most recent Fiscal Quarter for which financial statements have been delivered (or are required to be delivered) to the Lenders pursuant to Section 9(a)(xiii5.1(a) owing or 5.1(b)) is no greater than 0.50x less than that required pursuant to any director Section 7.1 as of the most recent Fiscal Quarter end, and (ii) no Default or executive officer Event of Issuer Default then exists or any of its Affiliateswould be caused thereby; and
(xivw) to the extent constituting Indebtedness, all premiums (if any), interest, fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (v) above. The accrual of interest, the accretion of accreted value, the amortization of original issue discount and the payment of interest in the form of additional Indebtedness approved in advance in writing by the Holders shall not be deemed to be an incurrence of at least a majority in aggregate principal amount Indebtedness for purposes of the outstanding Securitiesthis Section 6.1.
Appears in 2 contracts
Samples: Credit Agreement (Kellogg Co), Credit Agreement (WK Kellogg Co)
Indebtedness. Such Obligor Each of the Credit Parties will not, and nor will not it permit any of its Subsidiaries Subsidiary to, contract, create, incur, assume or permit to exist any Indebtedness, whether directly or indirectly, except:
(ia) Indebtedness arising or existing under this Agreement and the Obligationsother Credit Documents;
(b) Indebtedness existing as of the Closing Date as referenced in the financial statements referenced in Section 3.1 (and set out more specifically in Schedule 6.1(b)) hereto and renewals, refinancings or extensions thereof in a principal amount not in excess of that outstanding as of the date of such renewal, refinancing or extension, together with fees and expenses reasonably incurred in connection therewith;
(c) Indebtedness incurred after the Closing Date consisting of Capital Leases or Indebtedness incurred to provide all or a portion of the purchase price of furniture, fixtures and equipment provided that (i) such Indebtedness when incurred shall not exceed the purchase price or cost of construction of such furniture, fixtures and equipment; (ii) no such Indebtedness owing under shall be refinanced for a principal amount in excess of the Non-Convertible Credit Facility Loan Documents principal balance outstanding thereon at the time of such refinancing; and Permitted Refinancings thereof; provided that (iii) the aggregate outstanding principal total amount of all such Indebtedness shall not exceed $25,000,000 at any time outstanding and renewals, refinancings or extensions thereof in a principal amount not in excess of that outstanding as of the sum date of $35,000,000 and the amount of interest thereon compounded and added to the principal thereofsuch renewal, refinancing or extension;
(iiid) Unsecured intercompany Indebtedness owing under among the Convertible Credit Facility Loan Documents and Permitted Refinancings thereofParties; provided that the aggregate outstanding principal amount of all any such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added be fully subordinated to the principal thereof, and Indebtedness under Secured Obligations hereunder on terms reasonably satisfactory to the Fee Letter (as defined in the Convertible Credit Facility Agreement)Administrative Agent;
(ive) Indebtedness and obligations owing under Secured Hedging Agreements and other Hedging Agreements entered into in order to manage existing on August 28, 2015 or anticipated business risks and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holdersnot for speculative purposes;
(vf) accounts payable to trade creditors Indebtedness and obligations of Credit Parties owing under documentary letters of credit for the purchase of goods and services and current operating liabilities or other merchandise (but not under standby, direct pay or other letters of credit except for the result Letters of the borrowing of moneyCredit hereunder) incurred in the ordinary course of such Obligor’s or any of its 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 GAAPgenerally;
(vig) Indebtedness consisting in respect of guarantees resulting from endorsement Guaranty Obligations to the extent permitted under Section 6.3;
(h) Indebtedness in respect of negotiable instruments for collection by any Obligor Sale Leaseback Transactions to the extent permitted under Section 6.12;
(i) performance, surety, bid, appeal or any of its Subsidiaries similar bonds arising in the ordinary course of business;
(viij) any Indebtedness owing by any Person prior to such Person becoming a Subsidiary of any Obligor a Credit Party pursuant to any other Obligora Permitted Acquisition; provided that, in each case, that such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holdersnot created in contemplation of such acquisition;
(viiik) Guarantees by any Obligor other unsecured Indebtedness or Subordinated Debt of Indebtedness of any other Obligor Credit Parties which does not exceed $200,000,000 in an the aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financingtime outstanding; provided that (i) if secured, the collateral therefor consists solely Credit Parties shall demonstrate to the reasonable satisfaction of the assets being financed, Administrative Agent that the products and proceeds thereof and books and records related thereto, Credit Parties will be in compliance on a Pro Forma Basis with the financial covenants set forth in Section 5.9 after giving effect to any such Indebtedness and (ii) no Event of Default shall exist at the aggregate outstanding principal amount time of, or shall result from, the incurrence of such Indebtedness; and
(l) other Indebtedness of the Credit Parties and their Subsidiaries which does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred 25,000,000 in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securitiesoutstanding.
Appears in 2 contracts
Samples: Credit Agreement (Red Robin Gourmet Burgers Inc), Credit Agreement (Red Robin Gourmet Burgers Inc)
Indebtedness. Such Obligor will The Borrower shall not, and will not nor shall it permit any of its Restricted Subsidiaries to, createissue, incur, assume assume, create or permit to exist have outstanding any Indebtedness; provided, whether directly or indirectlyhowever, exceptthat the foregoing shall not restrict nor operate to prevent:
(ia) the Obligations;
(ii) Indebtedness Secured Obligations of the Loan Parties and their Restricted Subsidiaries owing under to the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 Administrative Agent and the amount of interest thereon compounded Lenders (and added to the principal thereof;
(iii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreementtheir Affiliates);
(ivb) Indebtedness existing on August 28, 2015 purchase money indebtedness and set forth in Schedule 9.01 Capitalized Lease Obligations of the Non-Convertible Credit Facility Agreement; provided thatLoan Parties and their Restricted Subsidiaries in an amount not to exceed, in each casethe aggregate at any one time outstanding, such Indebtedness is subordinated to when taken together with Section 8.07(u), the Obligations on terms satisfactory to greater of (x) $50,000,000 and (y) 20% of Adjusted EBITDA for the Required Holdersmost recently ended Test Period;
(vc) accounts payable to trade creditors for goods and services and current operating liabilities (not the result obligations of the borrowing Loan Parties and their Subsidiaries arising out of money) incurred interest rate, foreign currency, and commodity Hedging Agreements entered into with financial institutions in connection with bona fide hedging activities in the ordinary course of such Obligor’s or any of its Subsidiaries’ business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved not for in accordance with GAAPspeculative purposes;
(vid) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments items for deposit or collection by any Obligor or any of its Subsidiaries commercial paper received in the ordinary course of business;
(viie) Indebtedness of any Obligor (i) intercompany indebtedness from time to any other Obligortime owing between the Loan Parties and (ii) intercompany indebtedness owing between Excluded Subsidiaries;
(f) (i) intercompany indebtedness owing by an Excluded Subsidiary to a Loan Party; provided thatthat such indebtedness results from a Permitted Intercompany Transfer, in each caseand (ii) intercompany indebtedness owing by a Loan Party to an Excluded Subsidiary, provided that such Indebtedness is unsecured and indebtedness shall be subordinated to the Obligations on terms satisfactory and conditions reasonably acceptable to the Required HoldersAdministrative Agent;
(viiig) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financingSubordinated Debt from time to time outstanding; provided that (i) if securedno Event of Default exists or would result from the incurrence of such Subordinated Debt and (ii) the Borrower shall be in compliance with the Total Leverage Ratio set forth in Section 8.24 hereof on a Pro Forma Basis after giving effect to the incurrence of such Subordinated Debt;
(h) Indebtedness of Foreign Subsidiaries in an aggregate principal amount at any time outstanding for all such Persons taken together not exceeding the greater of (x) $50,000,000 and (y) 20% of Adjusted EBITDA for the most recently ended Test Period;
(i) Indebtedness owed to any Person providing workers’ compensation, health, disability or other employee benefits (including contractual and statutory benefits) or property, casualty, liability or credit insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(j) Indebtedness in respect of bids, trade contracts (other than for debt for borrowed money), leases (other than Capitalized Lease Obligations), statutory obligations, surety, stay, customs and appeal bonds, performance, performance and completion and return of money bonds, government contracts and similar obligations, in each case, provided in the ordinary course of business;
(k) Indebtedness in respect of netting services, overdraft protection, cash pooling arrangements, automatic clearinghouse arrangements, and similar arrangements, employee credit card program in each case, in connection with cash management and deposit accounts;
(l) Indebtedness and other obligations (including in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments) in an aggregate outstanding principal amount not to exceed the greater of (x) $35,000,000 and (y) 10% of Adjusted EBITDA for the most recently ended Test Period;
(m) Indebtedness representing deferred compensation to directors, officers, employees of any Loan Party or any Subsidiary of a Loan Party incurred in the ordinary course of business;
(n) Indebtedness consisting of the financing of insurance premiums in the ordinary course of business;
(o) Indebtedness arising from agreements of a Loan Party or its Restricted Subsidiaries providing for indemnification, adjustment of purchase or acquisition price and deferred or contingent purchase price obligations (including earnouts, holdbacks or similar obligations), in each case, incurred or assumed in connection with a Permitted Acquisition and any Acquisition consummated prior to the date hereof;
(p) Indebtedness of any Person that becomes a Restricted Subsidiary after the Closing Date and Indebtedness acquired or assumed in connection with Permitted Acquisitions (“Acquired Indebtedness”), and extensions, renewals and replacements of any such Indebtedness (which such extensions, renewals and replacements shall not increase the principal amount thereof except by an amount equal to all accrued and unpaid interest and reasonable premium or other reasonable amounts paid, and reasonable fees and expenses incurred, in connection therewith); provided that such Indebtedness exists at the time the Person becomes a Restricted Subsidiary or at the time of such Permitted Acquisition and is not created in contemplation of or in connection therewith;
(q) unsecured Indebtedness of the Loan Parties and their Restricted Subsidiaries; provided, that (i) no Event of Default exists or would result from the incurrence of such Indebtedness, (ii) such Indebtedness shall not be senior in right of payment to the Obligations and (iii) the Borrower shall be in compliance with the Total Leverage Ratio set forth in Section 8.24 hereof on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness;
(r) Indebtedness existing on the date hereof and set forth in Schedule 8.7 and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof except by an amount equal to a reasonable premium or other amount paid, and reasonable fees and expenses incurred, in connection with such extension, renewal or replacement;
(s) Guarantees (i) by the Borrower of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary and (ii) by any Restricted Subsidiary of Indebtedness otherwise permitted hereunder of the Borrower or any other Restricted Subsidiary;
(t) Indebtedness in an aggregate amount not to exceed sum of (i) $300,000,000 (minus any aggregate principal amount of Incremental Facilities and Incremental Equivalent Debt incurred pursuant to clause (i) of Section 2.16(a), plus (ii) an unlimited amount so long as after giving Pro Forma Effect to such Indebtedness, (i) with respect to Indebtedness that is secured on a pari passu basis with the Revolving Credit Facility, the collateral therefor consists solely Total Leverage Ratio shall not exceed 3.50 to 1.00, (ii) with respect to Indebtedness that is secured on a junior basis to the Revolving Credit Facility, unsecured or subordinated, the Total Leverage Ratio is no greater than the level then required under Section 8.24 and (iii) immediately prior to and after giving effect to such Indebtedness, no Event of Default shall have occurred and be continuing; provided that if the proceeds of such Indebtedness are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the assets being financedBorrower, the products foregoing condition in clause (iii) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and proceeds the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing.
(u) Indebtedness incurred to finance the acquisition, construction or improvement of any fixed or capital assets, and extensions, renewals and replacements of any such Indebtedness (which such extensions, renewals and replacements shall not increase the principal amount thereof except by an amount equal to all accrued and books unpaid interest and records related theretoreasonable premium or reasonable other amounts paid, and reasonable fees and expenses incurred, in connection therewith); provided that (i) such Indebtedness is incurred prior to or within one hundred eighty (180) days after such acquisition or the completion of such construction or improvement and (ii) the aggregate outstanding principal amount of such Indebtedness does permitted by this clause (u), when combined with the aggregate outstanding principal amount incurred pursuant to clause (b) above, shall not exceed the greater of, when taken together with Section 8.07(b), (x) $2,300,000 50,000,000 and (or y) 20% of Adjusted EBITDA of the Equivalent Amount Borrower and its Restricted Subsidiaries for the most recently ended Test Period;
(v) customary indemnification obligations in other currenciesfavor of buyers of assets in connection with Dispositions not prohibited hereunder;
(w) at any time;[reserved]; and
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securitiesconstituting Incremental Equivalent Debt.
Appears in 2 contracts
Samples: Credit Agreement (Dynatrace, Inc.), Credit Agreement (Dynatrace, Inc.)
Indebtedness. Such Obligor will not5.3.1 Borrower shall not create, incur or assume any indebtedness for borrowed money or otherwise evidenced by a note or notes, whether secured or unsecured except for the Loan. Borrower shall not create, incur or assume any other indebtedness, if doing so would cause Borrower to be in violation of Section 9.1(h) hereof, or any other provision of this Agreement or the other Loan Documents applicable thereto.
5.3.2 Notwithstanding that any indebtedness incurred with respect to the Property is otherwise permitted hereunder, Borrower shall (subject to the terms of the next sentence) pay any portion of such indebtedness which becomes due and payable within sixty (60) days following the date on which each such amount is due and payable. Nothing contained in this Section 5.3 shall be deemed to require Borrower to pay any amount, so long as Borrower is in good faith, and will not permit any of its Subsidiaries toby proper legal proceedings, creatediligently contesting the validity, incuramount or application thereof, assume or permit to exist any Indebtedness, whether directly or indirectly, except:
(i) the Obligations;
(ii) Indebtedness owing under the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereof;
(iii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to at the Obligations on terms satisfactory to the Required Holders;
(v) accounts payable to trade creditors for goods and services and current operating liabilities (not the result time of the borrowing commencement of money) incurred in any such action or proceeding, and during the ordinary course pendency of such Obligor’s action or any proceeding (i) adequate reserves with respect thereto are maintained on the books of its Subsidiaries’ business the Borrower in accordance with customary terms and paid within GAAP (as determined by the specified timeApproved Accountant), unless contested in good faith by appropriate proceedings and reserved for in accordance with GAAP;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) such contest operates to suspend collection or enforcement, as the case may be, of the contested amount and such contest is maintained and prosecuted continuously and with diligence and (iii) Borrower shall deliver to Lender cash in an amount equal to one hundred twenty-five percent (125%) of the amounts being contested which exceed One Hundred Thousand and No/100 Dollars ($100,000.00) in the aggregate outstanding principal amount of and any additional interest, charge or penalty arising from such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including contest. Any cash delivered shall constitute additional security for the deferred purchase price Loan. Any such cash shall be held and invested in the same manner and subject to the same general terms as amounts deposited in the Cash Collateral Account under the Cash Management Agreement and, upon the occurrence of property acquired an Event of Default, Lender may apply such monies in a Permitted Acquisition)the same manner as other monies held in the Cash Collateral Account. Borrower shall execute such instruments as Lender shall require to evidence Lender's perfected first priority security interest therein and to effectuate the provisions hereof. If prior to the occurrence of an Event of Default, Borrower shall provide evidence satisfactory to Lender, in its reasonable judgment, that Borrower has paid the disputed amount, or (ii) otherwise settled the same and paid any amount to be paid under guaranties such settlement, or letters of creditthat Borrower has received a final unappealable judgment in its favor that it need not pay any disputed amount, surety bonds or performance bonds securing together with an Officer's Certificate confirming the performance of foregoing, then Lender shall return any Obligor or any of its Subsidiaries, in each case, in connection cash deposited with transactions permitted under Section 9(c)(v);
(xi) contingent obligations Lender with respect to performance guaranties such disputed amount. If Borrower ceases to pursue continuously and surety bonds incurred in the ordinary course of business and of with due diligence any contest described above, or fails to provide Lender with evidence satisfactory to Lender that it is doing so within ten (10) days after Lender's request, or if there shall be a type and amount consistent final judgment against Borrower with past practices respect thereto, then Lender may apply all or any portion of the Obligors cash to pay such disputed amount and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products Lender shall have no liability to Borrower for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a)determination made by Lender, in an aggregate amount not good faith, that it is entitled to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior do so or as to the incurrence of any amount to then be paid with respect to such Indebtedness under this Section 9(a)(xiii) owing disputed amount, whether or not that determination is found to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securitiesbe accurate.
Appears in 2 contracts
Samples: Loan Agreement (Golf Ventures Inc), Loan Agreement (Golf Ventures Inc)
Indebtedness. Such Obligor will not, and will not permit any of its Subsidiaries to, createCreate, incur, assume or permit suffer to exist any Indebtedness, whether directly or indirectly, except:
(ia) Indebtedness under the ObligationsLoan Documents;
(iib) Indebtedness owing under of the Non-Convertible Credit Facility Loan Documents Borrower and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall its Subsidiaries set forth in Schedule 8.03 (and renewals, refinancings and extensions thereof on terms and conditions not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added materially less favorable to the principal thereof;
(iii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreementapplicable debtor(s));
(ivc) intercompany Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holderspermitted under Section 8.02(d);
(vd) accounts payable to trade creditors for goods and services and current operating liabilities obligations (not the result contingent or otherwise) of the borrowing of moneyBorrower or any Subsidiary existing or arising under any Swap Contract, provided that (i) incurred 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 Obligor’s 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 of provision exonerating the non-defaulting party from its Subsidiaries’ business in accordance with customary terms and paid within obligation to make payments on outstanding transactions to the specified time, unless contested in good faith by appropriate proceedings and reserved for in accordance with GAAPdefaulting party;
(vie) purchase money Indebtedness consisting (including obligations in respect of guarantees resulting from endorsement of negotiable instruments for collection Capital Leases or Synthetic Leases) hereafter incurred by any Obligor the Borrower or any of its Subsidiaries to 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 $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 excess of the ordinary course principal balance outstanding thereon at the time of businesssuch refinancing;
(viif) Indebtedness of any Obligor that may exist or may be deemed to exist under the Product Acquisition Documents, the Entocort® EC Distribution Agreement, the 1996 License Agreement and any other Obligor; provided thatagreements providing for indemnification, purchase price adjustments and similar obligations (including Earn-Out Obligations) in each caseconnection with the lease, such Indebtedness is unsecured and subordinated to license, purchase or sale of assets effected in accordance with the Obligations on terms satisfactory to the Required Holdersrequirements of this Agreement;
(viiig) Guarantees by any Obligor of other unsecured Indebtedness of the Borrower or any other Obligor Subsidiary in an aggregate principal amount not exceeding to exceed $1,150,000 (or the Equivalent Amount in other currencies) 5,000,000 at any time;
(ix) normal course of business equipment financingone time outstanding; provided provided, that (i) if securedthe Loan Parties shall be in compliance with Section 8.11 after giving effect to such additional Indebtedness, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount no Default or Event of Default exists prior to or after giving effect to such Indebtedness does not exceed $2,300,000 and (or the Equivalent Amount in other currenciesiii) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any if such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliatesresults from seller financing, such Indebtedness is not evidenced by a demand note but rather has a stated maturity; and
(xivh) Guarantees with respect to Indebtedness approved in advance in writing by the Holders permitted under clauses (a) through (g) of at least a majority in aggregate principal amount of the outstanding Securitiesthis Section 8.03.
Appears in 2 contracts
Samples: Credit Agreement (Prometheus Laboratories Inc), Credit Agreement (Prometheus Laboratories Inc)
Indebtedness. Such Obligor will not, and will not permit Neither the Company nor any of its Subsidiaries to, shall create, incur, assume or permit suffer to exist any Indebtedness except for the following (each of which shall be calculated without duplication):
(a) Indebtedness under the Notes;
(b) Non-Recourse Indebtedness;
(c) Recourse Indebtedness of the Company and its Subsidiaries which is secured by Property of the Company or its Subsidiaries; provided, whether directly or indirectlyhowever, except:
that (i) as of the Obligations;
(ii) Indebtedness owing under the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that Closing through December 31, 2000, the aggregate outstanding principal amount of all such Recourse Indebtedness shall not exceed at any time the sum of $35,000,000 and the aggregate principal amount of interest thereon compounded such Recourse Indebtedness outstanding as of the Closing; and added to the principal thereof;
(iiiii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that after December 31, 2000, the aggregate outstanding principal amount of all such Recourse Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement)15,000,000;
(ivd) Recourse Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility AgreementCompany and its Subsidiaries which is not secured by Property of the Company or its Subsidiaries; provided thatprovided, in each casehowever, that the aggregate principal amount of all such Recourse Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holdersshall not exceed $33,000,000 at any time;
(ve) accounts payable Indebtedness of a Subsidiary owed to trade creditors the Company or any other Subsidiary;
(f) Indebtedness arising in connection with Swaps entered into by the Company or its Subsidiaries for goods and services and current operating liabilities the sole purpose of fixing or hedging (not i) interest rate risk with respect to any floating or fixed rate Indebtedness permitted by the result terms of this Agreement to be outstanding or (ii) the borrowing value of money) incurred foreign currencies purchased or received by the Company or its Subsidiaries in the ordinary course of business, provided that all such Obligor’s arrangements are entered into in connection with bona fide fixing or any of its Subsidiaries’ business in accordance with customary terms hedging operations and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved not for in accordance with GAAPspeculation;
(vig) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of the Company and its Subsidiaries for trade accounts payable, provided that (i) such accounts arise in the ordinary course of business and (ii) no material part of such account is more than 90 days past due (unless subject to a bona fide dispute for which adequate reserves have been established);
(h) Indebtedness of the Company and its Subsidiaries arising under workers' compensation, unemployment insurance and social security laws arising in the ordinary course of business;
(viii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to Company arising under the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its AffiliatesWarrants; and
(xivj) Subordinated Indebtedness of the Company and its Subsidiaries to any other Person. With respect to the Recourse Indebtedness set forth in Section 10.8(d) above, the Company will take, or cause to be taken, all actions necessary to ensure that the obligations of the Company under the Notes are and continue to rank at least pari passu in right of payment with such Recourse Indebtedness (including without limitation (a) Indebtedness approved in advance in writing by arising under the Holders of at least a majority in aggregate principal amount of East West Bank Credit Agreement and (b) Indebtedness arising under the outstanding SecuritiesTokai Bank Loan Agreement).
Appears in 2 contracts
Samples: Note Purchase Agreement (Kennedy Wilson Inc), Note Purchase Agreement (Kennedy Wilson Inc)
Indebtedness. Such Obligor will not, and will not permit any of its Subsidiaries to, create, incur, assume or permit to exist any Indebtedness, whether directly or indirectly, except:
(ia) the Obligations;
(iib) Indebtedness owing under the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 (the “First Lien Cap”) and the amount of interest thereon compounded and added to the principal thereof;
(iiic) Indebtedness owing under the Convertible Credit Facility Subordinated Junior Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 130,000,000 and the amount of interest thereon compounded and added to the principal thereof, ; provided further that any such replacement Indebtedness shall be subject to an intercreditor agreement in form and Indebtedness under substance satisfactory to the Fee Letter (as defined in Lenders and shall mature after the Convertible Credit Facility Agreement)Stated Maturity Date;
(ivd) Indebtedness existing on August 28, 2015 the date hereof and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement9.01; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required HoldersAdministrative Agent;
(ve) 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 such Obligor’s or any of its 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;
(vif) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(viig) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viiih) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 1,000,000 (or the Equivalent Amount in other currencies) at any time;
(ixi) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 2,000,000 (or the Equivalent Amount in other currencies) at any time;
(xj) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v9.03(e);
(xik) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xiil) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiiim) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a)9.01, in an aggregate amount not to exceed at any time $5,750,0005,000,000; provided that Issuer Borrower shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities Administrative Agent written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii9.01(m) owing to any director or executive officer of Issuer Borrower or any of its Affiliates; and
(xivn) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding SecuritiesRequired Lenders.
Appears in 2 contracts
Samples: Senior Secured Convertible Credit Agreement (Kadmon Holdings, LLC), Senior Secured Convertible Credit Agreement (Kadmon Holdings, LLC)
Indebtedness. Such Obligor will Each Borrower and Guarantor shall not, and will shall not permit any of its Subsidiaries to, incur, create, incurassume, assume become or be liable in any manner with respect to, or permit to exist exist, any Indebtedness, whether or guarantee, assume, endorse, or otherwise become responsible for (directly or indirectly), the Indebtedness, performance, obligations or dividends of any other Person, except:
(ia) the Obligations;
(b) purchase money Indebtedness (including Capital Leases) arising after the date hereof to the extent secured by purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on Real Property not to exceed $2,500,000 in the aggregate at any time outstanding so long as such security interests and mortgages do not apply to any property of such Borrower, Guarantor or Subsidiary other than the Equipment or Real Property so acquired, and the Indebtedness secured thereby does not exceed the cost of the Equipment or Real Property so acquired, as the case may be;
(c) guarantees by any Borrower or Guarantor of the Obligations of the other Borrowers or Guarantors in favor of Agent for the benefit of Lenders;
(d) the Indebtedness of any Borrower or Guarantor to any other Borrower or Guarantor arising pursuant to loans permitted under Section 9.10(d) or (e) hereof, provided, that, as to any such Indebtedness at any time owing by a Borrower to a Guarantor, (i) the Indebtedness arising pursuant to such loans shall be subject to, and subordinate in right of payment to, the right of Agent and Lenders to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Agent, (ii) such Borrower or such Guarantor shall join the Intercompany Subordination Agreement pursuant to a joinder agreement in form and substance reasonably satisfactory to the Agent, (iii) such Borrower shall not, directly or indirectly make, or be required to make, any payments in respect of such Indebtedness prior to the end of the then current term of this Agreement, except that Parent and Merchandising may make regularly scheduled payments of interest to Resources on a semi-annual basis at the end of the second and fourth Fiscal Quarters of Parent in respect of intercompany loans made by Resources to Parent or Merchandising, as the case may be, so long as Resources immediately applies all of the proceeds of such interest payments to make an intercompany loan in cash to Parent or Merchandising in accordance with the terms of Section 9.10(d) hereof; and (iv) in the case of any Indebtedness owing under to a Borrower or Guarantor, the Non-Convertible Credit Facility Loan Documents Indebtedness arising pursuant to any such loan shall not be evidenced by a promissory note or other instrument, unless the single original of such note or other instrument is promptly delivered to Agent upon its request to hold as part of the Collateral, with such endorsement and/or assignment by the payee of such note or other instrument as Agent may require;
(e) Indebtedness of any Borrower or Guarantor entered into in the ordinary course of business pursuant to a Hedge Agreement; provided, that, (i) such arrangements are with a Bank Product Provider, (ii) such arrangements are not for speculative purposes, and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all (iii) such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added be unsecured, except to the principal thereofextent such Indebtedness constitutes part of the Obligations arising under or pursuant to Hedge Agreements with any Bank Product Provider that are secured under the terms hereof;
(iiif) Indebtedness owing under unsecured guarantees by Parent or a Borrower of the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount obligations of all such Indebtedness shall not exceed at any time the sum a Borrower arising pursuant to a lease from a third party in a bona fide arm’s length transaction of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (real property for use as defined a retail store location in the Convertible Credit Facility Agreement)ordinary course of the business of such Borrower; provided, that, (i) the Person issuing such guarantee is permitted hereunder to incur directly the obligation that is being guaranteed and (ii) as of the date on which such guarantee is issued no Event of Default exists or has occurred and is continuing;
(ivg) Specified Subordinated Indebtedness existing on August 28and unsecured Indebtedness of any Borrower or Guarantor arising after the Closing Date to any third person (but not to any other Borrower or Guarantor), 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided provided, that, in each case, each of the following conditions is satisfied as determined by Agent: (i) such Indebtedness is subordinated shall be on terms and conditions acceptable to Agent and shall be subject and subordinate in right of payment to the right of Agent and Lenders to receive the prior indefeasible payment and satisfaction in full payment of all of the Obligations pursuant to the terms of an intercreditor agreement between Agent and such third party, in form and substance satisfactory to Agent, (ii) Agent shall have received not less than ten (10) days prior written notice of the intention of such Borrower or Guarantor to incur such Indebtedness, which notice shall set forth in reasonable detail satisfactory to Agent the amount of such Indebtedness, the person or persons to whom such Indebtedness will be owed, the interest rate, the schedule of repayments and maturity date with respect thereto and such other information as Agent may request with respect thereto, (iii) Agent shall have received true, correct and complete copies of all Subordinated Debt Documents evidencing or otherwise related to such Indebtedness, (iv) except as Agent may otherwise agree in writing, and except with respect to the Specified Subordinated Indebtedness, all of the proceeds of the loans or other accommodations giving rise to such Indebtedness shall be paid to Agent for application to the Obligations in accordance with Section 6.4(a), (v) as of the date of incurring such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or have occurred, (vi) such Borrower and Guarantor shall not, directly or indirectly, (A) amend, modify, alter or change the terms of such Indebtedness or any agreement, document or instrument related thereto, except, that, such Borrower or Guarantor may, after prior written notice to Agent, amend, modify, alter or change the terms thereof so as to extend the maturity thereof, or defer the timing of any payments in respect thereof, or to forgive or cancel any portion of such Indebtedness (other than pursuant to payments thereof), or to reduce the interest rate or any fees in connection therewith, or (B) redeem, retire, defease, purchase or otherwise acquire such Indebtedness (except as otherwise expressly permitted under Section 9.11(g)), or set aside or otherwise deposit or invest any sums for such purpose, and (vii) Borrowers and Guarantors shall furnish to Agent all notices or demands in connection with such Indebtedness either received by any Borrower or Guarantor or on terms satisfactory to its behalf promptly after the Required Holdersreceipt thereof, or sent by any Borrower or Guarantor or on its behalf concurrently with the sending thereof, as the case may be;
(v) 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 such Obligor’s or any of its 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;
(vih) Indebtedness consisting arising from lease payments in connection with one or more sale-leaseback transactions in respect of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related theretoOwned Real Properties, and (ii) the aggregate outstanding Real Properties formerly owned by Borrowers located at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx 00000 and 0000 Xxxxxxx Xxxxxx, Victoria, Texas 77904;
(i) the Indebtedness set forth on Schedule 9.9 to which are not permitted by the other provisions of Section 9.9 above; provided, that, (i) Borrowers and Guarantors may only make regularly scheduled payments of principal amount and interest in respect of such Indebtedness does not exceed $2,300,000 in accordance with the terms of the agreement or instrument evidencing or giving rise to such Indebtedness as in effect on the date hereof, (ii) Borrowers and Guarantors shall not, directly or indirectly, (A) amend, modify, alter or change the Equivalent Amount terms of such Indebtedness or any agreement, document or instrument related thereto as in other currencies) at any time;
(x) obligations effect on the date hereof except, that, Borrowers and Guarantors may, after prior written notice to Agent, amend, modify, alter or change the terms thereof so as to extend the maturity thereof, or defer the timing of any Obligor payments in respect thereof, or to forgive or cancel any portion of its Subsidiaries such Indebtedness (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisitionother than pursuant to payments thereof), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing to reduce the performance of any Obligor interest rate or any of its Subsidiariesfees in connection therewith, in each caseor (B) redeem, retire, defease, purchase or otherwise acquire such Indebtedness, or set aside or otherwise deposit or invest any sums for such purpose, and (iii) Borrowers and Guarantors shall furnish to Agent all notices or demands in connection with transactions permitted under Section 9(c)(v);such Indebtedness either received by any Borrower or Guarantor or on its behalf, promptly after the receipt thereof, or sent by any Borrower or Guarantor or on its behalf, concurrently with the sending thereof, as the case may be; and
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiiij) unsecured Indebtedness of any Obligor Borrower or Guarantor arising after the date hereof to any third person which is not otherwise described in this permitted by the other provisions of Section 9(a), 9.9 above in an aggregate outstanding amount not to exceed $100,000 at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securitiestime.
Appears in 2 contracts
Samples: Loan and Security Agreement (Hancock Fabrics Inc), Loan and Security Agreement (Hancock Fabrics Inc)
Indebtedness. Such Obligor It will not, and will not permit any of its Subsidiaries to, create, incur, assume or permit suffer to exist any Indebtedness, whether directly provided that KCMH and any Subsidiary may incur Indebtedness (and all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or indirectlycontingent interest with regard to such Indebtedness) if (x) immediately before and after such incurrence, exceptno Default or Event of Default shall have occurred and be continuing and (y) the Debt to Equity Ratio is less than or equal to [**] to 1.00 after giving pro forma effect thereto. The limitations set forth in the immediately preceding sentence shall not apply to any of the following items:
(i) Indebtedness arising under the ObligationsLoan Documents;
(ii) Intercompany Indebtedness owing under owed among the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Borrowers and/or their Subsidiaries (including any Indebtedness shall not exceed at used to finance any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereofFinancing Transaction);
(iii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement)Subordinated Debt;
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 respect of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required HoldersHedging Agreements;
(v) accounts payable to trade creditors for goods Indebtedness in respect of overdraft facilities, netting services, automatic clearinghouse arrangements and services other cash management and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries similar arrangements in the ordinary course of business;
(viivi) additional Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured KCMH and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor its Subsidiaries in an aggregate principal amount not exceeding to exceed $1,150,000 (or the Equivalent Amount in other currencies) [**] at any timetime outstanding;
(ixvii) normal course of business equipment financing; provided that Indebtedness arising under the Five-Year Credit Agreement (i) if secured, and the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related theretoother Loan Documents (as defined therein)), and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (any refinancing, renewal or the Equivalent Amount in other currencies) at any timereplacement thereof;
(xviii) obligations Indebtedness arising under fronting and/or settlement facilities (“Fronting Facilities”); provided that, at least 10 Business Days prior to incurring any such Indebtedness (or such shorter period as MHCB shall reasonably agree, it being agreed MHCB shall use commercially reasonable efforts to provide a response to KCMH as soon as practicable after receipt of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisitionsuch notice), KCMH and/or the relevant Subsidiary shall have provided MHCB a bona fide opportunity (through a written notice to MHCB) to provide such Indebtedness, including an offer regarding the timing of establishing such indebtedness, and MHCB shall have either (1) declined (through a written notice from the Administrative Agent to KCMH and/or such Subsidiary) to accept such offer to provide such Indebtedness or (ii2) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiariesfailed to respond in writing to such offer, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any within such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates10 Business Day period; and
(xivix) Indebtedness approved all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securitiesclauses (i) through (viii) above.
Appears in 2 contracts
Samples: 364 Day Revolving Credit Agreement (KKR & Co. Inc.), 364 Day Revolving Credit Agreement (KKR & Co. Inc.)
Indebtedness. Such Obligor will not, and will The Borrower shall not permit any of its Subsidiaries to, create, incur, assume or permit assume, suffer to exist or otherwise be or become liable with respect to any Indebtedness except the following (collectively, “Permitted Indebtedness, whether directly or indirectly, except:”):
(ia) the ObligationsIndebtedness incurred pursuant to any Credit Document;
(iib) unsecured Indebtedness owing under of the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereofBorrower (other than Intercompany Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $5,000,000;
(c) Purchase Money Indebtedness (including Capital Lease Obligations); provided that the aggregate principal amount and the capitalized portion of such obligations do not at any one time exceed $7,500,000 in the aggregate at any one time outstanding;
(d) unsecured Indebtedness of the Borrower owing to any Affiliate of the Borrower in an aggregate outstanding principal amount of all not to exceed $15,000,000 so long as such Indebtedness shall not exceed at any time the sum is subordinated in right of $35,000,000 and the amount of interest thereon compounded and added payment to the principal thereofLoans in accordance with the terms of subordination reasonably acceptable to the Administrative Agent (“Intercompany Indebtedness”);
(iiie) Permitted Refinancing Indebtedness owing to refinance all or any portion of any Indebtedness permitted under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereofthis Section; provided that the aggregate outstanding principal amount of all any such Permitted Refinancing Indebtedness shall not exceed at be deemed outstanding as the same type of Indebtedness being refinanced for purposes of determining the capacity of the Borrower to create, incur, assume, suffer to exist or otherwise be or become liable with respect to any time the sum of $69,095,709 and the amount of interest thereon compounded and added Indebtedness (to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreementextent such capacity is limited hereunder);
(ivf) Indebtedness existing listed on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) 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 such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v7.4(f);
(xig) contingent Performance Guarantees supporting the Project; provided that the terms of any such Performance Guarantee shall be generally consistent with past practice of the Borrower and its Affiliates and in no event shall any such Performance Guarantee be secured by Collateral;
(h) Indebtedness under any Permitted Commodity Hedge and Power Sales Agreement or other Swap Agreement entered into in accordance with Section 7.12;
(i) to the extent constituting Indebtedness, obligations with in respect of performance bonds, bid bonds, appeal bonds, surety bonds, completion guarantees, indemnification obligations, obligations to performance guaranties pay insurance premiums, take-or-pay obligations contained in supply agreements and surety bonds similar obligations incurred in the ordinary course of business and of a type and amount consistent not in connection with past practices of the Obligors and their SubsidiariesIndebtedness for Borrowed Money;
(xiij) obligations Indebtedness in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business and not in respect of Swap Agreements;
(k) Indebtedness in respect of netting services, overdraft protections and other similar cash management products for otherwise in connection with deposit accounts;; and
(xiiil) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a)the Borrower on then current market terms, so long as the proceeds thereof are used to fund Capital Expenditures relating to modifications to the Project to the extent required by Requirements of Law, in an aggregate principal amount not to exceed $19,500,000 at any one time $5,750,000outstanding; provided that Issuer shall give such Indebtedness has a final maturity date that is not earlier than, and provides for no scheduled payments of principal or mandatory redemption obligations prior to, the Holders of at least a majority in aggregate principal amount of date that is one year after the outstanding Securities written notice prior to Scheduled Termination Date. To the extent that the creation, incurrence or assumption of any Indebtedness could be attributable to more than one subsection of this Section 7.4, the Borrower may allocate such Indebtedness to any one or more of such subsections and in no event shall the same portion of Indebtedness be deemed to utilize or be attributable to more than one subsection. For the avoidance of doubt, any Indebtedness permitted to be incurred by the Borrower, as the case may be, under a specific subsection of this Section 9(a)(xiii) owing 7.4 and any Guarantee in respect of such Indebtedness which is also permitted to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing be incurred by the Holders Borrower, as the case may be, under the same subsection of at least a majority this Section 7.4 shall not count as two separate amounts of Indebtedness for purposes of calculating compliance with the limitations set forth in aggregate principal amount of the outstanding Securitiessuch subsection.
Appears in 2 contracts
Samples: Credit Agreement (REV Renewables, Inc.), Credit Agreement (REV Renewables, Inc.)
Indebtedness. Such Obligor The Borrower will not, and nor will not it permit any of its Restricted Subsidiaries to, contract, create, incur, assume or permit suffer to exist any Indebtedness, whether directly or indirectly, except:
(ia) the ObligationsObligations of the Borrower and its Restricted Subsidiaries owing to the Administrative Agent and the Lenders (and their Affiliates);
(b) intercompany Indebtedness among the Borrower and its Restricted Subsidiaries to the extent permitted by Section 6.15;
(c) (i) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, including any such Indebtedness assumed in connection with a Permitted Acquisition, (ii) Capitalized Lease Obligations of the Borrower and its Restricted Subsidiaries, including any such obligations assumed in connection with a Permitted Acquisition, and (iii) Indebtedness owing under incurred to finance the Non-Convertible Credit Facility Loan Documents acquisition, construction or improvement of any fixed or capital assets (“Project Indebtedness”), including any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on such assets before the acquisition thereof, and Permitted Refinancings thereofany refinancings of any such Project Indebtedness; provided that that, with respect to Project Indebtedness permitted by clause (iii) of this Section, (w) such Project Indebtedness is initially incurred before or within 180 days after such acquisition or the aggregate outstanding principal completion of such construction or improvement, (x) such Project Indebtedness shall be secured only by the Property acquired, constructed or improved in connection with the incurrence of such Project Indebtedness, (y) with respect to such Project Indebtedness assumed in connection with a Permitted Acquisition, the amount of all such Project Indebtedness shall not exceed at 60% of the Total Consideration paid in connection with such Permitted Acquisition and (z) with respect to Project Indebtedness incurred to finance the acquisition of any time fixed or capital assets, such Project Indebtedness shall constitute not less than 80% of the sum of $35,000,000 and the amount of interest thereon compounded and added aggregate consideration paid with respect to the principal thereofsuch Property;
(iiid) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount customer advances for prepayment of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and ore sales;
(e) Indebtedness under the Fee Letter (as defined in the Convertible Credit Portman Limited Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) 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 such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) to exceed at any timetime outstanding the U.S. Dollar Equivalent of $120,000,000 Australian Dollars;
(ixf) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at Hedging Liability to any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its SubsidiariesPerson, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds all cases incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiariesnot for speculative purposes;
(xiig) obligations Indebtedness in respect of netting servicesbid, overdraft protections and performance, surety, reclamation or other similar cash management products bonds or guaranties in the ordinary course of business, or any similar financial assurance obligations under Environmental Laws or worker’s compensation Laws or with respect to self-insurance obligations, including guarantees or obligations with respect to letters of credit supporting such obligations (in each case other than for deposit accountsan obligation for money borrowed);
(xiiih) unsecured Contingent Obligations in respect of Indebtedness otherwise permitted under this Section 6.12;
(i) Indebtedness incurred in connection with any sale/leaseback transaction permitted pursuant to Section 6.14(e) hereof;
(j) Indebtedness of any Obligor Non-Guarantor Subsidiaries not otherwise described in permitted by this Section 9(a), in an Section; provided that the aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders outstanding of at least a majority in aggregate principal amount all such Indebtedness plus Indebtedness of the outstanding Securities written notice Borrower and all Restricted Subsidiaries secured by Liens shall not exceed 20% of Net Worth as measured as of the end of the most recently completed fiscal quarter prior to the incurrence of any such Indebtedness;
(k) unsecured Indebtedness of Non-Guarantor Subsidiaries, not otherwise permitted under clause (j); provided that the ratio of Total Funded Debt to EBITDA of the Borrower and all Restricted Subsidiaries, after giving pro forma effect to the incurrence of such Indebtedness is less than 2.50 to 1.00, as measured as of the end of the most recently completed fiscal quarter prior to the incurrence of such Indebtedness;
(l) Indebtedness pursuant to the senior secured bonds issued by the Target pursuant to that Trust Indenture, dated as of January 29, 2010, between the Target and Computershare Trust Company of Canada;
(m) Indebtedness (i) pursuant to the convertible debentures issued by the Target pursuant to that Trust Indenture, dated as of November 29, 2010, between the Target and Equity Financial Trust Company and (ii) under this Section 9(a)(xiii) owing to any director or executive officer the SK Credit Agreement, dated as of Issuer or any of its AffiliatesDecember 24, 2009, between the Target and SK Networks Co. Ltd.; and
(xivn) unsecured Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding SecuritiesBorrower and the Guarantors not otherwise permitted by this Section.
Appears in 2 contracts
Samples: Term Loan Agreement (Cliffs Natural Resources Inc.), Bridge Credit Agreement (Cliffs Natural Resources Inc.)
Indebtedness. Such Obligor The Borrower will not, and will not permit any of its Subsidiaries Subsidiary to, incur, create, incur, assume or permit suffer to exist any Indebtedness, whether directly or indirectly, except:
(ia) the ObligationsSecured Obligations arising under the Loan Documents or the Secured Hedging Agreements, any guaranty of or suretyship arrangement for the Secured Obligations arising under the Loan Documents;
(iib) Indebtedness owing under Capital Leases or that constitutes Purchase Money Indebtedness; provided that the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereofaggregate amount of all Indebtedness described in this Section 9.02(b) at any one time outstanding shall not to exceed $8,000,000 in the aggregate;
(c) Indebtedness associated with performance bonds, bid bonds, surety bonds, appeal bonds or customs bonds required in the ordinary course of business or in connection with the enforcement of rights or claims of the Borrower or any Subsidiary or in connection with judgments that do not result in a Default or an Event of Default; provided that the aggregate outstanding principal amount of all such Indebtedness bonds permitted by this Section 9.02(c) shall not exceed at any time the sum of exceed $35,000,000 and the amount of interest thereon compounded and added to the principal thereof2,000,000;
(iiid) intercompany Indebtedness owing under between the Convertible Credit Facility Loan Documents Borrower and Permitted Refinancings thereofany Subsidiary or between Subsidiaries to the extent permitted by Section 9.05(g); provided that the aggregate outstanding principal amount of all such Indebtedness is not held, assigned, transferred, negotiated or pledged to any Person other than the Borrower or one of its Wholly-Owned Subsidiaries, and, provided, further, that any such Indebtedness owed by a Loan Party shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added be subordinated to the principal thereof, and Indebtedness under the Fee Letter (as defined Secured Obligations on terms set forth in the Convertible Credit Facility Guaranty and Collateral Agreement);
(ive) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 constituting a guaranty by any Loan Party of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated permitted to the Obligations on terms satisfactory to the Required Holdersbe incurred by any other Loan Party under this Section 9.02;
(vf) 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 such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement endorsements of negotiable instruments for deposit or collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(viig) Permitted Note Indebtedness; and
(h) other unsecured Indebtedness of not to exceed $8,000,000 in the aggregate at any Obligor to any other Obligorone time outstanding; provided that, in each case, such Indebtedness is unsecured and subordinated to no event shall the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding SecuritiesLoan Parties of the type described in clause (a) of the definition of “Consolidated Total Funded Indebtedness” exceed $210,000,000 as of December 31, 2012.
Appears in 2 contracts
Samples: Credit Agreement (Southcross Energy Partners, L.P.), Credit Agreement (Southcross Energy Partners, L.P.)
Indebtedness. Such Obligor will Company shall not, and will shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or permit to exist guaranty, or otherwise become or remain directly or indirectly liable with respect to, any Indebtedness, whether directly or indirectly, except:
(i) Loan Parties may become and remain liable with respect to the Obligations;
(ii) Company and its Subsidiaries may become and remain liable with respect to Contingent Obligations permitted by subsection 7.4 and, upon any matured obligations actually arising pursuant thereto, the Indebtedness owing under the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added corresponding to the principal thereofContingent Obligations so extinguished;
(iii) intercompany Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount owed by such Subsidiary to Company or to any of all its Subsidiaries for whose benefit such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement)payment is made;
(iv) Subsidiaries of Company other than wholly-owned Subsidiary Guarantors may become and remain liable with respect to intercompany Indebtedness existing on August 28, 2015 to Company and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) 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 such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor Subsidiary Guarantors in an aggregate principal amount not exceeding to exceed $1,150,000 (or the Equivalent Amount in other currencies) 95,000,000 at any timetime outstanding;
(ixv) normal course of business equipment financing; provided that (i) if secured, Company and Subsidiary Guarantors may become and remain liable with respect to Indebtedness outstanding under the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any timeSenior Note Agreement;
(xvi) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of Company and its Subsidiaries, in each caseas applicable, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations may remain liable with respect to performance guaranties Indebtedness described in Schedule 7.1 annexed hereto; and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;------------
(xiivii) obligations in Company and its Subsidiaries may become and remain liable with respect of netting services, overdraft protections and to other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate principal amount not to exceed $5,000,000 at any time $5,750,000outstanding; provided that Issuer the maximum aggregate -------- liability of Subsidiaries other than wholly-owned Subsidiary Guarantors in respect to Indebtedness permitted by subsection 7.1(vii) shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securitiesno time exceed $1,000,000.
Appears in 2 contracts
Samples: Credit Agreement (Varco International Inc), Credit Agreement (Varco International Inc)
Indebtedness. Such Obligor will not, and The Borrower will not permit any of its Subsidiaries to, Subsidiary to create, incur, incur or assume or permit to exist any Indebtedness, whether directly or indirectly, except:
(i) the Obligations;
(iia) Indebtedness owing under of any Person that becomes a Subsidiary of the Non-Convertible Credit Facility Loan Documents Borrower (other than GulfTerra Tendered Bonds for which funds have been irrevocably deposited into escrow pursuant to the Escrow Agreement for the purchase thereof), to the extent such Indebtedness is outstanding at the time such Person becomes a Subsidiary of the Borrower and Permitted Refinancings thereof; was not incurred in contemplation thereof and Indebtedness refinancing (but not increasing) such Indebtedness, and Indebtedness assumed by any Subsidiary in connection with its acquisition (whether by merger, consolidation, acquisition of all or substantially all of the assets or acquisition that results in the ownership of greater than fifty percent (50%) of the Equity Interests of a Person) of another Person and Indebtedness refinancing (but not increasing) such Indebtedness, provided that at the time of and after giving effect to the incurrence or assumption of such Indebtedness or refinancing Indebtedness and the application of the proceeds thereof, as the case may be, the aggregate outstanding principal amount of all such Indebtedness, and of all Indebtedness previously incurred or assumed pursuant to this Section 6.01(a), and then outstanding, shall not exceed at any time 75% of Consolidated EBITDA for the sum period of $35,000,000 four full fiscal quarters of the Borrower and the amount of interest thereon compounded its Subsidiaries (and added to the principal thereofsuch Person on a pro forma basis) then most recently ended;
(iiib) Indebtedness owing under of the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; Subsidiaries not otherwise permitted by this Section 6.01, provided that at the time of and after giving effect to the incurrence of such Indebtedness and the application of the proceeds thereof the aggregate outstanding principal amount of all such Indebtedness, and of all Indebtedness previously incurred pursuant to this Section 6.01(b), and then outstanding, shall not exceed at any time 25% of Consolidated EBITDA for the sum period of $69,095,709 four fiscal quarters of the Borrower and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement)Subsidiaries then most recently ended;
(ivc) Indebtedness of Project Finance Subsidiaries;
(d) intercompany Indebtedness;
(e) Indebtedness existing on August 28, 2015 the date hereof and set forth in on Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders6.01;
(vf) accounts payable GulfTerra Tendered Bonds for which funds have been irrevocably deposited into escrow pursuant to trade creditors the Escrow Agreement for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of such Obligor’s or any of its 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 GAAPrepayment thereof;
(vig) guarantees of the obligations and Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;hereunder; and
(viih) other unsecured Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed 25,000,000 at any time $5,750,000outstanding; provided provided, however, that Issuer no Subsidiary (other than a Project Finance Subsidiary) shall give the Holders create, incur or assume any Indebtedness pursuant to any provision of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director 6.01 if an Event of Default shall have occurred and be continuing or executive officer of Issuer would result from such creation, incurrence or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securitiesassumption.
Appears in 2 contracts
Samples: Multi Year Revolving Credit Agreement (Enterprise Products Partners L P), 364 Day Revolving Credit Agreement (Enterprise Products Partners L P)
Indebtedness. Such Obligor Each Credit Party will not, and will not permit any of its their respective Subsidiaries to, contract, create, incur, assume or permit suffer to exist any Indebtedness, whether directly or indirectly, except:
(ia) Indebtedness incurred pursuant to this Agreement and the Obligationsother Credit Documents;
(iib) Existing Indebtedness owing under outstanding on the Non-Convertible Credit Facility Loan Documents Effective Date and Permitted Refinancings listed on Schedule 8.21, plus subsequent extensions, renewals or refinancings thereof; provided that provided, that, the aggregate outstanding principal amount of all the Indebtedness to be extended, renewed or refinanced does not increase from that amount outstanding at the time of any such Indebtedness extension, renewal or refinancing and, provided, further, that any Intercompany Debt listed on Schedule 8.21 (and subsequent extensions, refinancings, renewals, replacements and refundings thereof shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added be subject to the principal thereof;
(iii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount requirements of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility AgreementSection 10.05(h);
(ivc) Indebtedness existing on August 28, 2015 (i) under Interest Rate Protection Agreements entered into with respect to other Indebtedness permitted under this Section 10.04 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(vii) accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred under Other Hedging Agreements entered into in the ordinary course of such Obligorbusiness and providing protection to the Company and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Company’s or any of its Subsidiaries’ business operations, in accordance with customary terms either case so long as the entering into of such Interest Rate Protection Agreements or Other Hedging Agreements are bona fide hedging activities and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved are not for in accordance with GAAPspeculative purposes;
(vid) (x) Indebtedness of the Company and its Subsidiaries evidenced by Capitalized Lease Obligations and purchase money Indebtedness described in Sections 10.01(f) and (g) and (y) Indebtedness of the Company and its Subsidiaries in respect of any obligations under Synthetic Leases; provided, that, in no event shall the sum of the aggregate principal amount of all such Indebtedness permitted by this clause (d) exceed the greater of (i) 3.5% of Consolidated Total Assets at the time of incurrence of such Indebtedness and (ii) $75,000,000 at any time outstanding;
(e) Indebtedness constituting Intercompany Loans to the extent permitted by Sections 10.05(h);
(f) Indebtedness consisting of guarantees resulting guaranties by the Qualified Credit Parties of each other’s Indebtedness and lease and other contractual obligations permitted under this Agreement;
(g) Indebtedness of a Subsidiary of the Company acquired pursuant to a Permitted Acquisition (or Indebtedness assumed at the time of a Permitted Acquisition of an asset securing such Indebtedness), plus subsequent extensions, renewals or refinancings thereof; provided, that, the aggregate principal amount of the Indebtedness to be extended, renewed or refinanced does not increase from endorsement that amount outstanding at the time of negotiable instruments for collection any such extension, renewal or refinancing; provided, further, that (i) such Indebtedness was not incurred in connection with, or in anticipation or contemplation of, such Permitted Acquisition and (ii) the aggregate principal amount of all Indebtedness permitted by this clause (g) shall not exceed, unless the Qualified Debt Conditions are satisfied at the time that any Obligor Indebtedness is incurred, extended, renewed or refinanced pursuant to this clause (g), $25,000,000 at any one time outstanding;
(h) Indebtedness arising from the honoring by a bank or other financial institution of its Subsidiaries a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, so long as such Indebtedness is extinguished within four Business Days of the incurrence thereof;
(viii) Indebtedness of the Company and its Subsidiaries with respect to performance bonds, surety bonds, appeal bonds or customs bonds required in the ordinary course of business or in connection with the enforcement of rights or claims of the Company or any of its Subsidiaries or in connection with judgments that do not result in a Default or an Event of Default;
(j) Indebtedness of any Obligor Credit Party (other than any Qualified Credit Party) under Shareholder Subordinated Notes so long as the aggregate principal amount of all such Shareholder Subordinated Notes does not exceed $5,000,000 at any time outstanding;
(k) Indebtedness owed to any Person providing property, casualty, liability or other Obligor; provided thatinsurance to any Credit Party or any of its Subsidiaries, in each case, so long as the amount of such Indebtedness is unsecured not in excess of the amount of the unpaid cost of, and subordinated shall be incurred only to defer the Obligations on terms satisfactory to cost of such insurance for the Required Holdersperiod in which such Indebtedness is incurred and such Indebtedness is outstanding only for a period not exceeding twelve months;
(viiil) Guarantees Indebtedness of the Company or any of its Subsidiaries which may be deemed to exist in connection with agreements providing for indemnification, purchase price adjustments and similar obligations in connection with the acquisition or disposition of assets in accordance with the requirements of this Agreement, so long as any such obligations are those of the Person making the respective acquisition or sale, and are not guaranteed by any Obligor of other Person except as permitted by Section 10.04(f);
(m) Indebtedness of any other Obligor the Credit Parties and their Subsidiaries under (x) the Second Lien Notes in an aggregate principal amount not exceeding to exceed $1,150,000 225,000,000 (as reduced by any repayments or prepayments of principal thereof made on or after the Equivalent Amount in other currenciesEffective Date) at and (y) the Refinancing Second Lien Notes (as reduced by any timerepayments or prepayments of principal thereof made after the incurrence thereof);
(ixn) normal course Indebtedness of business equipment financingthe Credit Parties and their Subsidiaries under (x) the New Notes in an aggregate principal amount not to exceed $500,000,000 (as reduced by any repayments or prepayments of principal thereof made on or after the Effective Date) and (y) the Refinancing New Notes (as reduced by any repayments or prepayments of principal thereof made after the incurrence thereof);
(o) so long as the Qualified Debt Conditions are satisfied at the time of the incurrence thereof, Indebtedness of the Credit Parties and their Subsidiaries the proceeds of which are concurrently used to finance a Permitted Acquisition and to pay the fees and expenses related thereto, plus subsequent extensions, renewals or refinancings thereof; provided that provided, that, (i) if secured, the collateral therefor consists solely aggregate principal amount of the assets being financedIndebtedness to be extended, renewed or refinanced does not increase from that amount outstanding at the products and proceeds thereof and books and records related theretotime of any such extension, renewal or refinancing and (ii) the aggregate outstanding principal amount Qualified Debt Conditions are satisfied at the time of such Indebtedness does not exceed $2,300,000 (the subsequent extension, renewal or the Equivalent Amount in other currencies) at any timerefinancing;
(xp) obligations so long as no Default or Event of any Obligor Default then exists or any of would result therefrom, unsecured Indebtedness incurred by the Company and its Subsidiaries (i) for indemnificationSubsidiaries, adjustment of purchase price or similar obligations (including for unsecured extensions, renewals and refinancings thereof by the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of Company and its Subsidiaries, in each casean aggregate principal amount for all such Indebtedness not to exceed the greater of (i) 3.5% of Consolidated Total Assets at the time of the incurrence of any such Indebtedness and (ii) $50,000,000 at any time outstanding; provided, however, if, at the time of any subsequent extension, renewal or refinancing of any Indebtedness theretofore incurred and outstanding in connection accordance with transactions permitted this clause (p), the aggregate principal amount of all Indebtedness that would be outstanding under Section 9(c)(v)this clause (p) would exceed 3.5% of Consolidated Total Assets at such time, then such extended, renewed or refinanced Indebtedness may be incurred so long as (A) no Default or Event of Default then exists or would result therefrom, (B) the aggregate principal amount of the Indebtedness to be so extended, renewed or refinanced shall not increase from that aggregate principal amount outstanding at the time of any such extension, renewal or refinancing and (C) such Indebtedness as so extended, renewed or refinanced shall not have a final maturity that is earlier than, or a weighted average life to maturity that is shorter than, the final maturity or remaining weighted average life to maturity, as applicable, of the Indebtedness to be so extended, renewed or refinanced;
(xiq) contingent unsecured Indebtedness incurred by the Company and the other Credit Parties, including unsecured extensions, renewals and refinancings thereof by the Company and the other Credit Parties, so long as (i) clauses (i), (ii), (v), (vi) and (vii) of the definition of Qualified Debt Conditions are satisfied, (ii) the Company shall be in compliance with a Total Leverage Ratio of not greater than 4.50:1.00 for the Test Period then most recently ended on a Pro Forma Basis as if such incurrence of Indebtedness had occurred on the first day of (and had remained outstanding throughout) such Test Period and (iii) prior to the date of the incurrence of such Indebtedness, the Company shall have delivered to the Administrative Agent a certificate of an Authorized Officer of the Company certifying as to compliance with preceding clauses (i) and (ii) and demonstrating (in reasonable detail) the calculations required by preceding clause (ii); provided, however, if, at the time of any subsequent extension, renewal or refinancing of any Indebtedness theretofore incurred and outstanding in accordance with this clause (q), the aggregate principal amount of all Indebtedness that would be outstanding under this clause (q) would cause the Total Leverage Ratio for the respective Test Period to exceed 4.50:1.00, then such extended, renewed or refinanced Indebtedness may be incurred so long as (A) the other conditions set forth above in this clause (q) are satisfied at such time, (B) the aggregate principal amount of the Indebtedness to be so extended, renewed or refinanced shall not increase from that aggregate principal amount outstanding at the time of any such extension, renewal or refinancing and (C) such Indebtedness as so extended, renewed or refinanced shall not have a final maturity that is earlier than, or a weighted average life to maturity that is shorter than, the final maturity or remaining weighted average life to maturity, as applicable, of the Indebtedness to be so extended, renewed or refinanced;
(r) additional Indebtedness (including, for this purpose, the aggregate principal amount of outstanding Refinery Revenue Bonds) incurred by the Company and the other Credit Parties, including extensions, renewals and refinancings thereof by the Company and the other Credit Parties, so long as (i) the Qualified Debt Conditions are satisfied, (ii) the aggregate principal amount of all Indebtedness incurred pursuant to this clause (r) shall not exceed at any time outstanding the greater of (x) $450,000,000 and (y) that amount of Indebtedness that may be incurred by the Company at such time such that the Total Leverage Ratio shall not exceed 1.75:1.00 for the Test Period then most recently ended on a Pro Forma Basis as if such incurrence of Indebtedness had occurred on the first day of (and had remained outstanding throughout) such Test Period and (iii) prior to the date of the incurrence of such Indebtedness, the Company shall have delivered to the Administrative Agent a certificate of an Authorized Officer of the Company certifying as to compliance with preceding clauses (i) and (ii) and demonstrating (in reasonable detail) the calculations required by preceding clause (ii); provided, however, if, at the time of any subsequent extension, renewal or refinancing of any Indebtedness theretofore incurred and outstanding in accordance with this clause (r), the aggregate principal amount of all Indebtedness that would be outstanding under this clause (r) would cause the Total Leverage Ratio for the respective Test Period to exceed 1.75:1.00, then such extended, renewed or refinanced Indebtedness may be incurred so long as (A) the other conditions set forth above in this clause (r) are satisfied at such time, (B) the aggregate principal amount of the Indebtedness to be so extended, renewed or refinanced shall not increase from that aggregate principal amount outstanding at the time of any such extension, renewal or refinancing and (C) such Indebtedness as so extended, renewed or refinanced shall not have a final maturity that is earlier than, or a weighted average life to maturity that is shorter than, the final maturity or remaining weighted average life to maturity, as applicable, of the Indebtedness to be so extended, renewed or refinanced;
(s) Indebtedness of the Company or any Subsidiary of the Company consisting of take-or-pay obligations with respect to performance guaranties and surety bonds contained in supply arrangements incurred in the ordinary course of business and of on a type and amount basis consistent with past practices of the Obligors and their Subsidiariespractice;
(xiit) obligations unsecured guarantees incurred by the Company and its Subsidiaries in the ordinary course of business in respect of netting servicesobligations of suppliers, overdraft protections customers, franchisees, lessors and other similar cash management products for deposit accountslicensees of the Company and its Subsidiaries that, in each case, are non-Affiliates of any Credit Party or Subsidiary thereof;
(xiiiu) unsecured Indebtedness of Capitalized Lease Obligations incurred by the Company and its Subsidiaries in connection with any Obligor not otherwise described in this Sale and Leaseback Transaction permitted under Section 9(a), 10.02(q) in an aggregate amount not to exceed $20,000,000;
(v) First Lien Hedging Debt;
(w) Indebtedness in respect of the CVR Intercompany Facility; provided, that, (i) such Indebtedness shall not accrue interest at a per annum rate greater than six (6%) percent in excess of the LIBO Rate, (ii) the maturity date of such Indebtedness and any time $5,750,000; provided that Issuer notes, agreements, documents or instruments evidencing or in respect of such Indebtedness shall give be not earlier than ninety (90) days after the Holders Initial Revolving Commitment Termination Date or any Extended Revolving Commitment Termination Date, and (iii) as of at least a majority in aggregate the making of the payment of any principal amount in respect of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under and after giving effect thereto, the Payment Conditions as applicable to this Section 9(a)(xiii10.04(w) owing to any director or executive officer of Issuer or any of its Affiliatesshall be satisfied; and
(xivx) Indebtedness approved in advance respect of letters of credit issued to support crude oil purchases (other than Letters of Credit) in writing by the Holders of an aggregate amount (including unpaid drawings in respect thereof) not to exceed $50,000,000 at least a majority in aggregate principal amount of the outstanding Securitiesany time outstanding.
Appears in 2 contracts
Samples: Abl Credit Agreement (CVR Refining, LP), Abl Credit Agreement (CVR Energy Inc)
Indebtedness. Such Obligor No Borrower will, or will not, and will not permit any of its Subsidiaries to, contract, create, incur, assume or permit suffer to exist any Indebtedness, whether directly Indebtedness or indirectlyInterest Rate Protection Agreements or Other Hedging Agreements, except:
(i) the Obligations;
(ii) Existing Indebtedness owing (not constituting Capitalized Lease Obligations, which shall be required to be justified under following clause (v)) outstanding on the Non-Convertible Closing Date and listed on Schedule IX;
(iii) Interest Rate Protection Agreements entered into with respect to other Indebtedness permitted under this Section 10.04 so long as the entering into of such Interest Rate Protection Agreements are bona fide hedging activities and are not for speculative purposes;
(iv) Other Hedging Agreements providing protection to Aleris and its Subsidiaries against fluctuations in currency values and commodity prices so long as the entering into of such Other Hedging Agreements are bona fide hedging activities and are not for speculative purposes;
(v) Indebtedness of Aleris and its Subsidiaries (other than the European Distribution Subsidiaries) evidenced by Capitalized Lease Obligations and Synthetic Lease Obligations (to the extent permitted by Section 10.01(vi)) and purchase money Indebtedness secured by Liens described in Section 10.01(vii), provided that in no event shall the sum of the aggregate principal amount of all Capitalized Lease Obligations, Synthetic Lease Obligations and purchase money Indebtedness permitted by this clause (v) exceed $100,000,000 at any time outstanding;
(vi) intercompany Indebtedness among Aleris and its Subsidiaries to the extent permitted by Sections 10.05(viii), (xiv) or (xvi);
(vii) Indebtedness under term loans or senior notes in an initial aggregate principal amount not to exceed $25,000,000;
(viii) Indebtedness consisting of guaranties by Aleris and its Subsidiaries of each other’s Indebtedness or other obligations of any such Persons permitted under Section 10.05(viii), (xiv) or (xvi);
(ix) cash management obligations and other Indebtedness in respect of netting services, overdraft protections and similar arrangements in each case in connection with deposit accounts;
(x) Permitted Refinancing Indebtedness;
(xi) to the extent that same constitutes Indebtedness, indemnification obligations, purchase price or other similar adjustments in connection with acquisitions and dispositions permitted hereunder;
(xii) Indebtedness of Aleris or any Subsidiary of Aleris (other than the European Borrower and its Subsidiaries) acquired pursuant to a Permitted Acquisition or other acquisition of an Acquired Business or Entity permitted pursuant to Section 10.05 (or Indebtedness assumed at the time of a Permitted Acquisition or such other acquisition permitted pursuant to Section 10.05), provided that (x) such Indebtedness was not incurred in connection with, or in anticipation or contemplation of, such Permitted Acquisition or other acquisition permitted pursuant to Section 10.05, (y) the aggregate principal amount of all Indebtedness permitted by this clause (xii) shall not exceed $50,000,000 at any one time outstanding;
(xiii) Indebtedness in respect of letters of credit (other than Letters of Credit Facility Loan Documents and Permitted Refinancings thereofissued pursuant to this Agreement) or bank guarantees; provided that the aggregate outstanding principal face amount of all any such Indebtedness letters of credit or bank guarantees that are secured shall not exceed $10,000,000 outstanding at any time one time, and any security therefor shall be limited to cash collateral including by providing security over an Exempted Deposit Account in accordance with clause (E) of the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal definition thereof;
(iiixiv) unsecured Indebtedness owing under of Aleris the Convertible net cash proceeds of which are used to consummate one or more Permitted Acquisitions or other acquisitions of Acquired Entities or Businesses permitted pursuant to Section 10.05. (“Additional Debt”); provided that (x) (A) the terms of such Additional Debt shall not contain any cross-default provisions (other than for material non-payment at final maturity, and may include a cross-acceleration provision), (B) the terms of the Additional Debt shall not contain any financial maintenance covenants, (C) the Additional Debt shall not be secured by any asset of Aleris or any of its Subsidiaries and shall not be guaranteed by Aleris or any Subsidiary of Aleris other than another Credit Facility Loan Documents Party, and Permitted Refinancings thereof(D) no portion of the principal of the Additional Debt shall be scheduled to be redeemed, repurchased or otherwise repaid or prepaid (other than as a result of a change of control, customary offers upon asset sales, acceleration or such other provision as shall be customary for comparable high-yield debt securities) prior to the date that is six months after the Final Maturity Date and (y) solely at the time of the incurrence of such Indebtedness after giving effect to the incurrence of such Indebtedness, (I) the Fixed Charge Coverage Ratio is at least 1.0 to 1.0 for the immediately preceding 12-month period as of the most recently ended Fiscal Quarter for which Final Statements have been delivered pursuant to Section 9.01(b), and (II) no Default or Event of Default shall exist or would result therefrom; and
(xv) Attributable Debt incurred by Aleris or any Subsidiary pursuant to Sale and Lease-Back Transactions of property (real or personal), equipment or other fixed or capital assets owned by Aleris or any Subsidiary as of the Closing Date or acquired by Aleris or any Subsidiary after the Closing Date in exchange for, or with the proceeds of the sale of, such assets owned by Aleris or any Subsidiary as of the Closing Date and any Refinancing Indebtedness incurred to refund, replace or refinance any Indebtedness, Disqualified Stock or Preferred Stock incurred pursuant to this clause (xv); provided that the aggregate outstanding principal amount of all such Indebtedness shall Attributable Debt incurred under this clause (xv) does not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement)35,000,000;
(ivxvi) Indebtedness existing on August 28owed to any Person providing workers’ compensation, 2015 health, disability or other employee benefits (including contractual and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided thatstatutory benefits) or property, casualty, liability or credit insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) case incurred in the ordinary course of such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(viixvii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor Borrower or any of its Subsidiaries (i) for indemnificationin respect of performance bonds, adjustment of purchase price or bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition)obligations, or (ii) under guaranties or obligations in respect of letters of credit, surety bonds bank guarantees or performance bonds securing similar instruments related thereto, in each case provided in the performance ordinary course of business;
(xviii) Indebtedness consisting of promissory notes issued by any Credit Party to current or former officers, 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 thereof) or of Aleris (following a Qualified Public Offering of Aleris) permitted by Section 10.03;
(xix) Indebtedness consisting of obligations of any Obligor Borrower or any of its SubsidiariesSubsidiaries under deferred compensation or other similar arrangements incurred by such Person in connection with the Transaction, Permitted Acquisitions or any other Investment expressly permitted hereunder;
(xx) Indebtedness consisting of (x) the financing of insurance premiums or (y) take-or-pay obligations contained in supply arrangements, in each case, in connection with transactions permitted under Section 9(c)(v)the ordinary course of business;
(xixxi) contingent obligations with Indebtedness incurred by any Borrower or any of its Subsidiaries in respect to performance guaranties and surety bonds incurred of documentary letters of credit, bank guarantees, bankers’ acceptances or similar instruments issued or created in the ordinary course of business business; provided that any such documentary letter of credit or other similar instrument may be secured only by Liens attaching to the related documents of title and of a type and amount consistent with past practices of the Obligors and their Subsidiariesnot any Inventory represented thereby;
(xiixxii) obligations in respect Indebtedness supported by a Letter of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a)Credit, in an aggregate a principal amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders face amount of at least a majority such Letter of Credit;
(xxiii) Unsecured Indebtedness under the IntermediateCo Notes (as defined in the Plan) in an aggregate principal amount of up to $50,000,000, to be issued by Aleris or its Affiliates in connection with the Transactions;
(xxiv) Indebtedness in an aggregate principal amount at any time outstanding Securities written notice prior of up to $50,000,000 solely to the extent the Net Cash Proceeds thereof are applied to finance a Permitted Acquisition;
(xxv) unsecured senior notes in an aggregate principal amount at any time outstanding of up to $50,000,000, or unsecured subordinated notes; provided that in either case, such Indebtedness does not provide for annual amortization of more than 1% and such debt matures more than 90 days after the Final Maturity Date;
(xxvi) Indebtedness to finance the purchase of Inventory (other than U.K. Inventory included in the Collateral) by European Subsidiaries of Aleris;
(xxvii) Indebtedness of Foreign Subsidiaries that are not Credit Parties (to the extent such Indebtedness is not guaranteed by a Credit Party);
(xxviii) [Reserved];
(xxix) Indebtedness pursuant to a declaration of joint and several liability used for the purpose of Section 2:403 of the Dutch Civil Code (and any residual liability under such declaration arising pursuant to section 2:404(2) of the Dutch Civil Code);
(xxx) Indebtedness of Aleris and its Subsidiaries (other than the European Distribution Subsidiaries) (A) in an aggregate principal amount at any time outstanding of up to $200,000,000 if solely at the time of the incurrence of any such Indebtedness under this the Fixed Charge Coverage Ratio determined on a pro forma basis for the immediately preceding 12-month period as of the most recent Fiscal Quarter for which financial statements have been delivered pursuant to Section 9(a)(xiii9.01(b) owing is at least 1.0 to any director or executive officer 1.0, and after giving pro forma effect thereto, shall be at least 1.0 to 1.0; and (B) in an unlimited principal amount if solely at the time of Issuer or any the incurrence of its Affiliatessuch Indebtedness the Fixed Charge Coverage Ratio determined on a pro forma basis for the immediately preceding 12-month period as of the most recent Fiscal Quarter for which financial statements have been delivered pursuant to Section 9.01(b) is at least 1.2 to 1.0, and after giving pro forma effect thereto, shall be at least 1.2 to 1.0; provided that in either case, such Indebtedness does not provide for annual amortization of more than 1% and such debt matures more than 60 days after the Final Maturity Date; and
(xivxxxi) Indebtedness approved in advance in writing constituting an Investment permitted by Section 10.05. Notwithstanding the Holders of at least a majority in aggregate principal amount foregoing, Indebtedness of the outstanding SecuritiesEuropean Borrower permitted pursuant to clauses (v), (xxiv), (xxv), (xvii), (xxi) and (xxx) of this Section 10.04 shall not exceed $5,000,000 at any time outstanding. The accrual of interest and the accretion or amortization of original issue discount on Indebtedness and the payment of interest in the form of additional Indebtedness originally incurred in accordance with this Section 10.04 will not constitute an incurrence of Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement (Aleris Ohio Management, Inc.), Credit Agreement (Aleris Ohio Management, Inc.)
Indebtedness. Such Obligor will not, and will not permit any of its Subsidiaries toIncur, create, incur, assume or permit to exist any Indebtednessexist, whether directly or indirectly, any Indebtedness, except:
(a) Indebtedness incurred under this Agreement and the other Loan Documents;
(i) Indebtedness of Borrower and its Subsidiaries outstanding on the Obligations;
Closing Date and listed on Schedule 6.01(b), (ii) Indebtedness owing under Permitted Refinancings thereof and (iii) the Non-Convertible Credit Facility Senior Subordinated Loans and Senior Subordinated Loan Documents Guarantees (including any notes and guarantees issued in exchange therefor in accordance with the registration rights document entered into in connection with the issuance of the Senior Subordinated Loans and Senior Subordinated Loan Guarantees) and Permitted Refinancings thereof;
(c) Indebtedness of Borrower and its Subsidiaries under Hedging Obligations with respect to interest rates, foreign currency exchange rates or commodity prices, in each case not entered into for speculative purposes; provided that if such Hedging Obligations relate to interest rates, (i) such Hedging Obligations relate to payment obligations on Indebtedness otherwise permitted to be incurred by the aggregate outstanding Loan Documents and (ii) the notional principal amount of all such Indebtedness shall Hedging Obligations at the time incurred does not exceed at any time the sum of $35,000,000 and the principal amount of interest thereon compounded and added the Indebtedness to the principal thereofwhich such Hedging Obligations relate;
(iiid) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreementpermitted by Section 6.04(f);
(ive) Indebtedness existing on August 28, 2015 of Borrower and set forth its Subsidiaries in Schedule 9.01 respect of the Non-Convertible Credit Facility Agreement; provided thatPurchase Money Obligations and Capital Lease Obligations, in each case, such Indebtedness is subordinated an aggregate amount not to the Obligations on terms satisfactory to the Required Holdersexceed $10.0 million at any time outstanding;
(v) 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 such Obligor’s or any of its 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;
(vif) Indebtedness consisting in respect of bid, workers’ compensation claims, self-insurance obligations, bankers’ acceptances, performance or surety, appeal or similar bonds issued for the account of and completion guarantees resulting from endorsement of negotiable instruments for collection and other similar obligations provided by any Obligor or any of its Subsidiaries Company in the ordinary course of business;
(viig) Contingent Obligations of Borrower and its Subsidiaries in respect of Indebtedness otherwise permitted under this Section 6.01;
(h) Indebtedness arising from the honoring by a bank or other financial institution of any Obligor to any other Obligora check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided thatprovided, in each casehowever, that such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holdersextinguished within five Business Days of incurrence;
(viiii) Guarantees by any Obligor Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business;
(j) Acquired Indebtedness of any other Obligor in an aggregate principal amount not exceeding to exceed $1,150,000 (or the Equivalent Amount in other currencies) 15.0 million at any timetime outstanding;
(ixk) normal course Indebtedness incurred by Borrower or any Subsidiary to finance the payment of business equipment financing; provided that (i) if secured, the collateral therefor consists solely insurance premiums of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (Borrower or the Equivalent Amount in other currencies) at any timeits Subsidiaries;
(xl) obligations of any Obligor or any of its Subsidiaries (iunsecured intercompany Indebtedness permitted pursuant to Section 6.04(f) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(vm);
(xim) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), Borrower and its Subsidiaries in an aggregate amount not to exceed $25.0 million at any time outstanding, of which $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates5.0 million may be secured Indebtedness; and
(xivn) Indebtedness approved of Holdings or Borrower consisting of notes issued in advance lieu of Restricted Payments described in writing by Section 6.08(b), provided that (i) such Indebtedness shall be subordinated to the Holders Obligations in a manner reasonably satisfactory to the Administrative Agent, (ii) such Indebtedness shall have no covenants or events of at least a majority default other than in aggregate principal amount respect of the outstanding Securitiesobligation to make scheduled principal and interest payments and (iii) the interest rate applicable to such Indebtedness shall not exceed the Base Rate applicable at the time of issuance of such Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement (Mattress Firm Holding Corp.), Credit Agreement (Mattress Firm Holding Corp.)
Indebtedness. Such Obligor will The Borrower shall not, and will shall cause each Restricted Subsidiary not permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or permit suffer to exist any Indebtedness, whether directly or indirectly, exceptother than:
(ia) Indebtedness under the ObligationsLoan Documents;
(iib) unsecured intercompany Indebtedness owing under among the Non-Convertible Credit Facility Loan Documents Borrower and Permitted Refinancings thereofits Restricted Subsidiaries to the extent permitted by Section 8.02; provided that if such Indebtedness is owed by the Borrower or any of its Restricted Subsidiaries to a Person that is not a Loan Party, such Indebtedness must be Subordinated Indebtedness;
(c) Indebtedness outstanding on the Closing Date and listed on Schedule 8.03 and any Permitted Refinancing Indebtedness in respect thereof;
(d) obligations under Swap Contracts entered into by any Loan Party for bona fide hedging activities and not for speculative purposes;
(e) Indebtedness in respect of capital leases, purchase money Indebtedness and Synthetic Lease Obligations within the limitations set forth in Section 8.01(o); provided, however, that the aggregate outstanding principal amount of all such Indebtedness at any one time outstanding shall not exceed (x) $30,000,000 and (y) 11% of Consolidated Adjusted EBITDA of the Borrower and its Restricted Subsidiaries for the Calculation Period then most recently ended at any the time such Lien is incurred;
(f) Incremental Equivalent Debt so long as the sum of $35,000,000 and the aggregate principal amount of interest thereon compounded and such Indebtedness does not exceed, when added to the aggregate principal thereofamount of the Incremental Facilities incurred pursuant to Section 2.14, the Maximum Incremental Facilities Amount;
(iiig) Indebtedness owing under in respect of Refinancing Equivalent Debt;
(h) unsecured Indebtedness of the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided Borrower, which may be guaranteed on an unsecured basis by the Guarantors, in respect of the Senior Unsecured Notes to the extent that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) 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 such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 400,000,000 (as reduced by any repayments or prepayments of principal thereof after the Equivalent Amount Closing Date) and any Permitted Refinancing Indebtedness in other currencies) at any timerespect thereof;
(xi) obligations Subordinated Indebtedness or unsecured senior Indebtedness of any Obligor the Borrower or any Restricted Subsidiary; provided that, after giving pro forma effect to the incurrence of its Subsidiaries such Indebtedness, the Interest Coverage Ratio, calculated on a Pro Forma Basis, as of the most recently ended Calculation Period, would be greater than 2.00:1.00; provided, further, that (i) for indemnificationsuch Indebtedness shall have a maturity date at least six months after the Latest Maturity Date, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties such Indebtedness shall have a weighted average life to maturity longer than the weighted average life to maturity of the Term Loans with the latest Maturity Date, (iii) such Indebtedness shall have covenants no more restrictive than those in this Agreement as in effect at the time of the issuance or incurrence thereof and (iv) the aggregate principal amount of all Indebtedness incurred by Non-Loan Parties, when aggregated with the aggregate principal amount of all Indebtedness assumed by Non-Loan Parties pursuant to clause (j) below, does not exceed the greater of (x) $85,000,000 and (y) 30.0% of Consolidated Adjusted EBITDA of the Borrower and its Restricted Subsidiaries for the Calculation Period then most recently ended at the time of such incurrence;
(j) Indebtedness of any Person that becomes a Restricted Subsidiary after the Closing Date pursuant to a Permitted Investment (other than as a result of the designation of an Unrestricted Subsidiaries as a Restricted Subsidiary), which Indebtedness is existing at the time such Person becomes a Restricted Subsidiary and was not incurred in contemplation of such Person becoming a Restricted Subsidiary, that is non-recourse to (and is not assumed by any of) the Borrower, the Borrower or any Restricted Subsidiary (other than any Subsidiary of such Person that is a Subsidiary on the date such Person becomes a Restricted Subsidiary after the Closing Date); provided that (i) after giving pro forma effect to the incurrence of such Indebtedness, either (A) the Interest Coverage Ratio, calculated on a Pro Forma Basis, as of the most recently ended Calculation Period, would be greater than 2.00:1.00 or (B) the Interest Coverage Ratio, calculated on a Pro Forma Basis as of the most recently ended Calculation Period, is greater than immediately prior to such incurrence and (ii) the aggregate principal amount of all Indebtedness assumed by Non-Loan Parties, when aggregated with the principal amount of all Indebtedness incurred by Non-Loan Parties pursuant to clause (i) above, does not exceed the greater of (x) $85,000,000 and (y) 30.0% of Consolidated Adjusted EBITDA of the Borrower and its Restricted Subsidiaries for the Calculation Period then most recently ended at the time of such incurrence;
(k) Indebtedness of the Borrower or any Restricted Subsidiary not otherwise permitted hereunder in an aggregate principal amount, which when aggregated with the principal amount of all other Indebtedness then outstanding and incurred pursuant to this clause (k), does not at any one time outstanding exceed the greater of (x) $100,000,000 and (y) 35.0% of Consolidated Adjusted EBITDA of the Borrower and its Restricted Subsidiaries for the Calculation Period then most recently ended at the time of such incurrence; and
(l) with respect to any of the foregoing Indebtedness, any Guarantee of such Indebtedness given by the Borrower or a Guarantor; provided that the aggregate principal amount of Guarantees given by the Borrower and the Guarantors in respect of Indebtedness of Non-Loan Parties shall not exceed at any time outstanding the greater of (x) $35,000,000 and (y) 15.0% of Consolidated Adjusted EBITDA of the Borrower and its Restricted Subsidiaries for the Calculation Period then most recently ended at the time of such incurrence at any time outstanding (as such amount is reduced by any payments made in respect of such Guarantees).
(m) Indebtedness of the Issuer or any Restricted Subsidiary in connection with one or more standby letters of credit, surety performance bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred completion guarantees issued in the ordinary course of business or pursuant to self-insurance obligations and not in connection with the borrowing of a type and amount consistent with past practices money or the obtaining of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director advances or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securitiescredit.
Appears in 2 contracts
Samples: Credit Agreement (Everi Holdings Inc.), Credit Agreement (Everi Holdings Inc.)
Indebtedness. Such Obligor will not, and will not permit any of its Subsidiaries toIncur, create, incur, assume or permit to exist any Indebtednessexist, whether directly or indirectly, any Indebtedness, except:
(ia) Indebtedness incurred under this Agreement and the Obligationsother Loan Documents;
(b) (i) Indebtedness outstanding on the Effective Date and (ii) Indebtedness owing under the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings refinancings or renewals thereof; provided that (A) any such refinancing Indebtedness is in an aggregate principal amount not greater than the aggregate outstanding principal amount of all such the Indebtedness shall not exceed at any time the sum of $35,000,000 and being renewed or refinanced, plus the amount of interest any premiums required to be paid thereon compounded and added reasonable fees and expenses associated therewith, (B) such refinancing Indebtedness has a later or equal final maturity and longer or equal weighted average life than the Indebtedness being renewed or refinanced and (C) the covenants, events of default, subordination and other provisions thereof (including any guarantees thereof) shall be, in the aggregate, no less favorable to the principal thereofLenders than those contained in the Indebtedness being renewed or refinanced;
(iiic) Indebtedness owing under Hedging Obligations with respect to interest rates, foreign currency exchange rates or commodity prices, in each case not entered into for speculative purposes; provided that if such Hedging Obligations relate to interest rates, (i) such Hedging Obligations relate to payment obligations on Indebtedness otherwise permitted to be incurred by the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that (ii) the aggregate outstanding notional principal amount of all such Indebtedness shall Hedging Obligations at the time incurred does not exceed at any time the sum of $69,095,709 and the principal amount of interest thereon compounded and added the Indebtedness to the principal thereof, and which such Hedging Obligations relate;
(d) Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreementpermitted by Section 6.04(f);
(ive) Indebtedness existing on August 28in respect of Purchase Money Obligations and Capital Lease Obligations, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided thatrefinancings or renewals thereof, in each case, such Indebtedness is subordinated an aggregate amount not to the Obligations on terms satisfactory to the Required Holdersexceed $25.0 million at any time outstanding;
(vf) accounts payable to trade creditors Indebtedness in respect of bid, performance or surety bonds, workers’ compensation claims, self-insurance obligations and bankers acceptances issued for goods and services and current operating liabilities (not the result account of the borrowing of money) incurred any Company in the ordinary course of business, including guarantees or obligations of any Company with respect to letters of credit supporting such Obligor’s bid, performance or any of its Subsidiariessurety bonds, workers’ business compensation claims, self-insurance obligations and bankers acceptances (in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved each case other than for in accordance with GAAPan obligation for money borrowed);
(vig) Contingent Obligations of any Loan Party in respect of Indebtedness otherwise permitted under this Section 6.01;
(h) Indebtedness consisting arising from the honoring by a bank or other financial institution of guarantees resulting from 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;
(i) Indebtedness arising in connection with endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries deposit in the ordinary course of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiiij) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), Company in an aggregate amount not to exceed $30.0 million at any time outstanding;
(k) secured or unsecured Indebtedness of any Company up to an amount equal to $5,750,00023,250,000 less any Incremental Loans incurred after the Effective Date; provided that Issuer shall give if such Indebtedness is secured by Collateral, it may be secured either on a junior basis or on an equal and ratable basis with the Holders of at least a majority Secured Obligations, in aggregate principal amount of the outstanding Securities written notice prior each case, subject to intercreditor arrangements reasonably satisfactory to the incurrence Supermajority Lenders; provided further that if the interest rate (which shall be deemed to include all upfront or similar fees or original issue discount (with OID being equated to interest rates in a manner reasonably determined by the Administrative Agent on an assumed four-year life to maturity) and any other component of interest rate) in respect of any such Indebtedness under this Section 9(a)(xiii) owing that is secured by Collateral on an equal and ratable basis with the Secured Obligations exceeds the interest rate with respect to any director or executive officer of Issuer or any of its Affiliatesthe Term Loans and/or previously incurred Incremental Loans, the interest rate with respect to the Term Loans and previously incurred Incremental Loans shall be increased so that it is equal to the interest rate with respect to such Indebtedness; and
(xivl) other Indebtedness approved in advance in writing of any Company; provided that, if such Indebtedness is secured by Collateral, it may be secured on a junior basis with the Holders of at least Secured Obligations subject to intercreditor arrangements reasonably satisfactory to the Supermajority Lenders; provided further that, after giving effect to such Indebtedness, on a majority in aggregate principal amount of Pro Forma Basis, the outstanding SecuritiesTotal Leverage Ratio shall be no more than 3.0 to 1.0.
Appears in 2 contracts
Samples: Credit Agreement (Magnachip Semiconductor LLC), Credit Agreement (Magnachip Semiconductor LLC)
Indebtedness. Such Obligor will not, and will not permit any of its Subsidiaries to, createCreate, incur, assume or permit suffer to exist any Indebtedness, whether directly or indirectly, exceptIndebtedness (exclusive of trade debt) except in respect of:
(ia) Indebtedness to Lenders,
(b) Indebtedness of the ObligationsBorrower and its Subsidiaries existing as of the Closing Date and set forth on Schedule 7.8 or any renewals, refinancings or extensions thereof in a principal amount not in excess of that outstanding as of the date of such 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 the direct or any contingent obligor with respect thereto, is not changed as a result of or in connection with such renewal, refinancing or extension, and the terms of any such renewal, refinancing or extension, taken as a whole, are not less favorable to the obligor thereunder;
(iic) Indebtedness owing under of the Non-Convertible Credit Facility Loan Documents Borrower and Permitted Refinancings thereof; provided that its Subsidiaries incurred after the Closing Date consisting of Capitalized Leases or Indebtedness incurred to provide all or a portion of the purchase price or cost of construction of an asset in an aggregate outstanding principal amount of all such Indebtedness shall not to exceed $2,500,000 at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereofoutstanding;
(iiid) unsecured intercompany Indebtedness owing under among the Convertible Credit Facility Loan Documents Borrower and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement)its Subsidiaries;
(ive) Indebtedness and obligations owing under hedging agreements entered into to manage existing on August 28or anticipated interest rate, 2015 exchange rate or commodity price risks and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holdersnot for speculative purposes;
(v) 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 such Obligor’s or any of its 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;
(vif) Indebtedness consisting of guarantees resulting arising from endorsement of negotiable instruments agreements providing for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured indemnification and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price adjustment obligations or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition)obligations, or (ii) under guaranties from guarantees or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of Borrower and its Subsidiaries, in each caseSubsidiaries pursuant to such agreements, in connection with transactions dispositions, other sales of assets or other permitted under Section 9(c)(v)acquisitions not prohibited by the KeyBank Documents;
(xig) contingent obligations with Guaranty Obligations in respect of Indebtedness of Borrower and its Subsidiaries to performance guaranties and surety bonds the extent such Indebtedness is permitted to exist or be incurred pursuant to this Section; and
(h) Indebtedness incurred to finance the payment of insurance premiums incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiariesbusiness;
(xiii) any Guarantee of the obligations of Borrower and its Subsidiaries as a tenant under any lease (which lease is not a Capital Lease) or a purchaser in connection with any Permitted Acquisition (as defined in the KeyBank Documents);
(j) Indebtedness owed in respect of netting servicesoverdrafts and related liabilities arising in the ordinary course of business from treasury, overdraft protections depository and other similar cash management products for deposit accountsservices or from automated clearing-house transfers of funds;
(xiiik) unsecured Indebtedness consisting of any Obligor not otherwise described obligations under deferred compensation arrangements, and non-competition agreements, incurred in this Section 9(a)the ordinary course of business;
(l) Indebtedness consisting of obligations under adjustments of purchase price, earn-outs or similar arrangements in an aggregate amount not to exceed $2,500,000 at any time $5,750,000; provided that Issuer shall give time;
(m) the Holders of at least KeyBank Debt in a majority in aggregate principal amount not to exceed the maximum amount of the outstanding Securities written notice prior principal commitments on the Closing Date (including the incremental facilities under the KeyBank Documents) (including any renewals, refinancings or extensions thereof, and the terms of any such renewal, refinancing or extension, taken as a whole, are not less favorable to the obligor thereunder);
(n) Indebtedness in respect of performance, surety or appeal bonds provided in the ordinary course of business;
(o) Indebtedness in respect of take-or-pay obligations of the Borrower or any of its Subsidiaries contained in supply arrangements, in each case, in the ordinary course of business;
(p) Indebtedness of any Person that becomes a Subsidiary of the Borrower or another Subsidiary in a manner not prohibited by the KeyBank Documents, which Indebtedness is existing at the time such Person becomes a Subsidiary of the Borrower (other than Indebtedness incurred solely in contemplation of such Person’s becoming a Subsidiary of the Borrower);
(q) until thirty (30) days following the Closing Date, the Affiliate Loans and the guarantee of the Affiliate Loans by GPM Opco;
(r) Indebtedness constituting unsecured subordinated debt, provided that (i) no Default or Event of Default shall then exist or immediately after incurring any of such Indebtedness will exist, (ii) the documentation with respect to such Indebtedness shall be in form and substance satisfactory to the Agent, (iii) the Borrower and its Subsidiaries shall be in compliance with the financial covenants set forth in Section 6.5 both immediately before and after giving pro forma effect to the incurrence of such Indebtedness, and (iv) the aggregate outstanding principal amount of Indebtedness permitted by this subpart (r) shall not exceed $2,500,000 at any such time;
(s) additional unsecured Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer the Borrower or any of its AffiliatesSubsidiaries, provided that the aggregate outstanding principal amount of all such Indebtedness does not exceed $2,500,000; and
(xivt) Indebtedness approved in advance in writing by under clause (n) of the Holders definition hereto to the extent such Indebtedness does not exceed an aggregate of $5,000,000 at least a majority in aggregate principal any time (it being understood that the amount of such Indebtedness shall be calculated net of advances for branding expenses paid to the outstanding SecuritiesBorrower or any Guarantor by a counterparty to one or more new Supply Agreement(s) to replace in whole or in part any such terminated Supply Agreement).
Appears in 2 contracts
Samples: Term Loan and Security Agreement (ARKO Corp.), Term Loan and Security Agreement (GPM Petroleum LP)
Indebtedness. Such Obligor will not, and will not permit any of its Subsidiaries to, createCreate, incur, assume assume or permit suffer to exist any Indebtedness, whether directly or indirectly, exceptIndebtedness (exclusive of trade debt) except in respect of:
(ia) the ObligationsIndebtedness to Lenders;
(iib) Indebtedness owing incurred for Capital Expenditures permitted under Section 7.6 hereof,
(c) Indebtedness due under the Non-Convertible Credit Facility Indenture Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereofDocumentation;
(iiid) the incurrence by any Borrower of Indebtedness owing under (including Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations) incurred for the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount purpose of financing all such Indebtedness shall not exceed at or any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 part of the Non-Convertible Credit Facility Agreement; provided thatpurchase price or cost of design, development, construction, installation or improvement of property (real or personal), plant or equipment used in each case, a Permitted Business of such Indebtedness is subordinated to Borrower (including through the Obligations on terms satisfactory to direct acquisition of such assets or the Required Holders;
(v) accounts payable to trade creditors for goods and services and current operating liabilities (not the result acquisition of Equity Interests of the borrowing of money) incurred in the ordinary course of Person owning such Obligor’s or any of its Subsidiaries’ business in accordance with customary terms and paid within the specified timeassets), unless contested in good faith by appropriate proceedings and reserved for in accordance with GAAP;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding to exceed $1,150,000 (or the Equivalent Amount in other currencies) 5,000,000 at any timetime outstanding;
(ixe) normal course the incurrence by any Borrower of business equipment financing; provided Indebtedness in exchange for, or the net proceeds of which are used to extend, renew, refund, refinance, replace, defease or discharge, Indebtedness (other than Intercompany Debt) that was permitted by this Section 7.8;
(f) the incurrence by any Borrower of Indebtedness to any other Borrower;
(g) the incurrence by any Borrower of Hedging Obligations in the Ordinary Course of Business;
(h) the guarantee by any Borrower of Indebtedness of any Borrower that was permitted to be incurred by another provision of this Section 7.8;
(i) if securedthe incurrence by any Borrower of Indebtedness in respect of surety, performance, appeal or similar bonds, completion guarantees or similar instruments issued in the collateral therefor consists solely ordinary course and not supporting obligations for borrowed money, including in respect of the assets being financed, the products workers’ compensation claims and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any timeself-insurance obligations;
(xj) the incurrence by any Borrower of 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; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness represented by the Xxxxxx Xxxxxx Note issued on the Closing Date;
(l) endorsement of negotiable instruments for deposit or collection or similar transactions in the Ordinary Course of Business;
(m) to the extent constituting Indebtedness, indemnification obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or and other similar obligations (including for the deferred purchase price advancement of property acquired in a Permitted Acquisition), or (iiexpenses) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor Borrower in favor of directors, officers, employees, consultants or agents of such Borrower extended in the Ordinary Course of Business in an aggregate principal amount not to exceed $1,000,000 at any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v)time outstanding;
(xin) contingent obligations with respect Indebtedness owing to performance guaranties insurance companies (or another Person engaged at the direction of any Borrower and surety bonds any such insurance company) to finance insurance premiums incurred in the ordinary course Ordinary Course of business and of a type and Business in an aggregate principal amount consistent with past practices of the Obligors and their Subsidiaries;not to exceed $2,000,000 at any time outstanding; and
(xiio) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) additional unsecured Indebtedness of any Obligor not otherwise described Borrower (in this Section 9(a), addition to the Indebtedness under clauses (a) through (n) above) in an aggregate principal amount outstanding at any time not to exceed at $5,000,000. For purposes of determining compliance with this Section 7.8 in the event that an item of proposed Indebtedness, disqualified stock or preferred stock meets the criteria of more than one of the categories of Permitted Debt described in clauses (a) through (o) above, the Borrowers will be permitted to classify such item of Indebtedness or any time $5,750,000; provided that Issuer shall give portion thereof on the Holders date of at least a majority its incurrence or issuance, and will only be required to include the amount and type of such Indebtedness in aggregate principal one of the above clauses, although the Company may divide and classify an item of Indebtedness, in one or more of the categories of Indebtedness described in such clauses. The accrual of interest or dividends, the accretion of accreted value or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms will not be deemed to be an incurrence of Indebtedness for purposes of this Section 7.8. Notwithstanding any other provision of this Section 7.8, the maximum amount of the outstanding Securities written notice prior Indebtedness that any Borrower may incur pursuant to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing 7.8 shall not be deemed to any director be exceeded solely as a result of fluctuations in exchange rates or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securitiescurrency values.
Appears in 2 contracts
Samples: Revolving Credit and Security Agreement (Aventine Renewable Energy Holdings Inc), Revolving Credit and Security Agreement (Aventine Renewable Energy Holdings Inc)
Indebtedness. Such Obligor will not, and will not permit any of its Subsidiaries toIncur, create, incur, assume or permit to exist any Indebtednessexist, whether directly or indirectly, any Indebtedness, except:
(ia) Indebtedness incurred under this Agreement and the Obligationsother Loan Documents;
(b) Indebtedness outstanding on the Closing Date;
(c) [reserved];
(d) [reserved];
(e) Indebtedness of Borrower and its Subsidiaries in respect of Purchase Money Obligations, Synthetic Lease Obligations and Capital Lease Obligations to the extent (i) arising under agreements entered into prior to the Petition Date in accordance with the Pre-Petition Credit Agreement and (ii) Indebtedness owing under entered into after the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the Petition Date in an aggregate outstanding principal amount of all such Indebtedness shall not exceed to exceed, at any time the sum of outstanding, $35,000,000 and the amount of interest thereon compounded and added to the principal thereof250,000;
(iiif) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement)[reserved];
(ivg) Indebtedness existing on August 28in respect of bid, 2015 and set forth performance or surety bonds issued for the account of any Company in Schedule 9.01 the ordinary course of the Non-Convertible Credit Facility Agreement; provided thatbusiness, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) accounts payable to trade creditors for goods and services and current operating liabilities (not the result including guarantees or obligations of the borrowing of money) any Company incurred in the ordinary course of business with respect to letters of credit supporting such Obligor’s bid, performance or surety obligations (in each case other than for an obligation for money borrowed), in an aggregate amount at any of its 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 GAAPtime outstanding not to exceed $300,000;
(vih) [reserved];
(i) Indebtedness consisting arising from the honoring by a bank or other financial institution of guarantees resulting from 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 ten (10) Business Days of incurrence;
(j) Indebtedness arising in connection with endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries deposit in the ordinary course of business;
(viik) [reserved];
(l) Indebtedness of any Obligor Foreign Subsidiary (other than any Indebtedness owed to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of Loan Party or any other Obligor Subsidiary) in an aggregate principal amount for all Foreign Subsidiaries in an amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) to exceed, at any timetime outstanding $500,000;
(ixm) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time[reserved];
(xn) obligations of any Obligor Indebtedness incurred to pay premiums for insurance policies maintained by Borrower or any Subsidiary thereof in the ordinary course of its Subsidiaries business;
(io) for indemnificationContingent Obligations with respect to bonds issued to support workers’ compensation, adjustment of purchase price unemployment or other insurance or self-insurance obligations, and similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiariesobligations, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds case incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiariesbusiness;
(xiip) Indebtedness constituting indemnification, deferred purchase price adjustments, earn-outs or other similar contingent payment obligations incurred in connection with any Investment or Disposition not prohibited hereunder (other than, in the case of a Disposition, guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Subsidiary for the purpose of financing such acquisition), so long as the amount does not exceed the gross proceeds actually received by Borrower or the applicable Subsidiary, as the case may be, in connection with any such Disposition;
(q) Indebtedness in respect of netting services, overdraft protections and other similar cash management products for deposit accountstake-or-pay obligations contained in supply agreements entered into in the ordinary course of business;
(xiiir) unsecured Indebtedness representing deferred compensation to directors, officers, employees, members of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders management and consultants of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer Borrower or any of its AffiliatesSubsidiaries incurred in the ordinary course of business;
(s) [reserved]; and
(xivt) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securities[reserved].
Appears in 2 contracts
Samples: Senior Secured Debtor in Possession Credit Agreement (Internap Corp), Senior Secured Super Priority Debtor in Possession Credit Agreement
Indebtedness. Such Obligor will notWithout Lender’s prior written consent, and will Borrower shall not permit any of its Subsidiaries to, create, incur, assume or permit suffer to exist any IndebtednessIndebtedness (exclusive of trade debt) except (subject to compliance with Section 6.06 hereof):
(a) Indebtedness to Lender,
(b) Indebtedness specifically identified on Schedule 2.17 hereto (but excluding any refinancings, whether directly refundings, renewals, or indirectlyextensions thereof);
(c) Indebtedness constituting purchase money indebtedness for the financing of capital expenditures and capital leases so long as such Indebtedness is secured only by a security interest in the equipment being financed and so long as such Indebtedness does not cause, except:or result in, an Event of Default or Unmatured Event of Default;
(d) Indebtedness of Borrower to any other Borrower;
(e) Unfunded pension or employment benefit plan obligations not constituting an Event of Default;
(f) Indebtedness resulting from judgments not otherwise constituting an Event of Default;
(g) Indebtedness arising from the honoring by a bank of checks or similar instruments against insufficient funds;
(h) Indebtedness in respect of taxes, assessments, governmental charges or levies or claims of customs authorities and claims for labor, worker’s compensation, materials and supplies;
(i) the Obligations;
(ii) Indebtedness owing under the NonShort-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereof;
(iii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) accounts payable to term unsecured trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds credit incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries(other than for borrowed money);
(xiij) obligations Credit card debt incurred by or on behalf of Borrowers’ directors, managers, members, officers, employees or agents in respect connection with their duties on behalf of netting servicesBorrowers in the ordinary course of business, overdraft protections and other similar cash management products for deposit accountsprovided all such credit card debt together shall not exceed $150,000 outstanding the aggregate in any two-month period;
(xiiik) Other unsecured indebtedness not to exceed $150,000 in aggregate principal amount outstanding;
(l) Indebtedness constituting Comerica Subordinated Debt;
(m) Indebtedness constituting Safeguard Subordinated Debt; and
(n) Upon the prior written consent of any Obligor not otherwise described in this Section 9(a)Lender, Indebtedness in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer 30,000,000 pursuant to convertible notes purchased by investors reasonably acceptable to Lender which shall give the Holders have closed on or before December 31, 2008 and which shall be on terms and conditions, and subject to documentation, in form and substance satisfactory to Lender in its sole discretion and subject to an intercreditor and/or subordination agreement in favor of at least a majority Lender in aggregate principal amount of the outstanding Securities written notice prior form and substance satisfactory to the incurrence Lender in its sole discretion. Borrowers shall provide such information, data, reports, statements and information (financial or otherwise) as Lender may request in its review of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securitiesproposed transaction.
Appears in 2 contracts
Samples: Credit Agreement (Clarient, Inc), Credit Agreement (Clarient, Inc)
Indebtedness. Such Obligor will not, and will not permit any of its Subsidiaries toIncur, create, incur, assume or permit to exist any Indebtedness, whether directly or indirectly, except:
(i) the Obligations;
(ii) Indebtedness owing under the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereof;
(iii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iva) Indebtedness existing on August 28, 2015 the date hereof and set forth in Schedule 9.01 6.01(a) and any extensions, renewals or replacements of such Indebtedness to the extent the principal amount of such Indebtedness is not increased, neither the final maturity nor the weighted average life to maturity of such Indebtedness is decreased, such Indebtedness, if subordinated to the Obligations, remains so subordinated on terms no less favorable to the Lenders, and the original obligors in respect of such Indebtedness remain the only obligors thereon;
(b) Indebtedness created hereunder and under the other Loan Documents;
(c) intercompany Indebtedness of the Non-Convertible Credit Facility Agreement; provided that, in each case, Borrower and the Subsidiaries to the extent permitted by Section 6.04(c) so long as such Indebtedness is subordinated to the Obligations on terms satisfactory pursuant to the Required Holdersan Affiliate Subordination Agreement;
(vd) accounts payable to trade creditors for goods and services and current operating liabilities (not the result Indebtedness of the borrowing Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of moneyany fixed or capital assets, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that (i) such Indebtedness is incurred in prior to or within 90 days after such acquisition or the ordinary course completion of such Obligor’s construction or improvement and (ii) the aggregate principal amount of Indebtedness permitted by this Section), when combined with the aggregate principal amount of all Capital Lease Obligations incurred pursuant to Section 6.01(e) shall not exceed $10,000,000 at any of its 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 GAAPtime outstanding;
(vie) Capital Lease Obligations in an aggregate principal amount, when combined with the aggregate principal amount of all Indebtedness incurred pursuant to Section 6.01(d), not in excess of $10,000,000 at any time outstanding;
(f) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor under performance bonds or any of its Subsidiaries with respect to workers’ compensation claims, in each case incurred in the ordinary course of business;
(viig) Indebtedness under letters of credit, bank guaranties or similar obligations issued in the ordinary course of business in an aggregate principal amount not to exceed $12,500,000 at any one time outstanding;
(h) Indebtedness incurred by any Excluded Subsidiary described in clause (b) of the definition thereof and owing to the partners in such Joint Venture; provided that (x) the aggregate principal amount of such Indebtedness shall not exceed $20,000,000 outstanding at any time and (y) without the prior written consent of the Required Lenders (such consent not to be unreasonably withheld or delayed), no additional Indebtedness shall be incurred under this clause (h) after the Springing Maturity Exercise Date other than pursuant to a binding agreement executed prior to the Springing Maturity Exercise Date;
(i) Indebtedness of any Obligor to any other ObligorPerson that becomes a Subsidiary after the date hereof; provided that, in each case, that (i) such Indebtedness exists at the time such Person becomes a Subsidiary and is unsecured not created in contemplation of or in connection with such Person becoming a Subsidiary, (ii) immediately before and subordinated to after such Person becomes a Subsidiary, no Default or Event of Default shall have occurred and be continuing and (iii) the Obligations on terms satisfactory to the Required Holdersaggregate principal amount of Indebtedness permitted by this Section shall not exceed $5,000,000 at any time outstanding;
(viiij) Guarantees by Indebtedness in respect of those Hedging Agreements incurred in the ordinary course of business and consistent with prudent business practice in an aggregate notional amount not to exceed $5,000,000 at any Obligor time outstanding;
(k) Indebtedness in respect of cash management services, including treasury, depository, overdraft, credit or debit card, electronic funds transfer, credit card processing and other cash management arrangements in the aggregate principal amount not exceeding $5,000,000 at any time outstanding; and
(l) other unsecured Indebtedness of any other Obligor Loan Party in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed 10,000,000 at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securitiesoutstanding.
Appears in 2 contracts
Samples: Credit Agreement (Oscar Health, Inc.), Credit Agreement (Oscar Health, Inc.)
Indebtedness. Such Obligor will Borrower shall not, and will shall not permit any of its Subsidiaries Subsidiary to, incur, create, incurassume, assume become or be liable in any manner with respect to, suffer or permit to exist exist, any IndebtednessIndebtedness or guarantee, whether assume, endorse, or otherwise become responsible for (directly or indirectly) the performance, dividends or other obligations of any Person, except:
(a) the Obligations;
(b) purchase money Indebtedness (including Capital Leases) arising after the date hereof to the extent secured by purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on Real Property not to exceed $3,500,000 in the aggregate at any time outstanding so long as such security interests and mortgages do not apply to any property of Borrower or its Subsidiaries other than the Equipment or Real Property so acquired, and the Indebtedness secured thereby does not exceed the cost of the Equipment or Real Property so acquired, as the case may be;
(c) guarantees by any Subsidiaries of Borrower of the Obligations in favor of Lender;
(d) Indebtedness of Borrower under interest swap agreements, interest rate cap agreements, interest rate collar agreements, interest rate exchange agreements and similar contractual agreements entered into for the purpose of protecting a Person against fluctuations in interest rates; provided, that, such arrangements are with banks or other financial institutions that have combined capital and surplus and undivided profits of not less than $250,000,000 and are not for speculative purposes and such Indebtedness shall be unsecured;
(e) Indebtedness of Borrower evidenced by or arising under the Senior Notes as in effect on the date hereof, provided, that:
(i) the Obligations;
(ii) Indebtedness owing under the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time $100,000,000 less the sum of $35,000,000 and the aggregate amount of all repayments, repurchases or redemptions, whether optional or mandatory, in respect thereof, plus interest thereon compounded at the rate provided for in the Senior Notes as in effect on the date hereof,
(ii) Borrower and added its Subsidiaries shall not, directly or indirectly, make any payments in respect of such Indebtedness, except that Borrower may make regularly scheduled payments of interest and principal, if any, in respect of such Indebtedness when due in accordance with the terms of the Senior Notes as in effect on the date hereof,
(iii) Borrower and its Subsidiaries shall not, directly or indirectly, (A) amend, modify, alter or change in any material respect any terms of such Indebtedness or any of the Senior Notes or the Senior Note Indenture or any related agreements, documents and instruments, except that Borrower may, after prior written notice to Lender, amend, modify, alter or change the principal terms thereof so as to extend the maturity thereof or defer the timing of any payments in respect thereof, or to forgive or cancel any portion of such Indebtedness other than pursuant to payments thereof, or to reduce the interest rate or any fees in connection therewith, or (B) redeem, retire, defease, purchase or otherwise acquire such Indebtedness, or set aside or otherwise deposit or invest any sums for such purpose, and
(iv) Borrower shall furnish to Lender all notices of default or demands in connection with such Indebtedness received by Borrower or on its behalf, promptly after the receipt thereof;
(iii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) 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 such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiiif) unsecured Indebtedness of Borrower arising after the date hereof to any Obligor not third person (other than Indebtedness otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness permitted under this Section 9(a)(xiii9.9), provided, that, each of the following conditions is satisfied as determined by Lender: (i) owing such Indebtedness shall be on terms and conditions acceptable to any director Lender and shall be subject and subordinate in right of payment to the right of Lender to receive the prior indefeasible payment and satisfaction in full payment of all of the Obligations pursuant to the terms of an intercreditor agreement between Lender and such third party, in form and substance satisfactory to Lender, (ii) Lender shall have received not less than ten (10) days prior written notice of the intention of Borrower to incur such Indebtedness, which notice shall set forth in reasonable detail satisfactory to Lender the amount of such Indebtedness, the person or executive officer persons to whom such Indebtedness will be owed, the interest rate, the schedule of Issuer repayments and maturity date with respect thereto and such other information as Lender may reasonably request with respect thereto, (iii) Lender shall have received true, correct and complete copies of all agreements, documents and instruments evidencing or otherwise related to such Indebtedness, (iv) except as Lender may otherwise agree in writing, all of the proceeds of the loans or other accommodations giving rise to such Indebtedness shall be paid to Lender for application to the Obligations in such order and manner as Lender may determine, (v) on and before the date of incurring such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or have occurred, (vi) Borrower shall not, directly or indirectly, (A) amend, modify, alter or change the terms of such Indebtedness or any agreement, document or instrument related thereto, except, that, Borrower may, after prior written notice to Lender, amend, modify, alter or change the terms thereof so as to extend the maturity thereof, or defer the timing of any payments in respect thereof, or to forgive or cancel any portion of such Indebtedness (other than pursuant to payments thereof), or to reduce the interest rate or any fees in connection therewith, or (B) redeem, retire, defease, purchase or otherwise acquire such Indebtedness (except pursuant to regularly scheduled payments permitted herein), or set aside or otherwise deposit or invest any sums for such purpose, and (vii) Borrower shall furnish to Lender all notices or demands in connection with such Indebtedness either received by Borrower or on its Affiliatesbehalf promptly after the receipt thereof, or sent by Borrower or on its behalf concurrently with the sending thereof, as the case may be;
(g) the Indebtedness set forth on Schedule 9.9 to the Information Certificate; provided, that, (i) Borrower may only make regularly scheduled payments of principal and interest in respect of such Indebtedness in accordance with the terms of the agreement or instrument evidencing or giving rise to such Indebtedness as in effect on the date hereof, (ii) Borrower shall not, directly or indirectly, (A) amend, modify, alter or change the terms of such Indebtedness or any agreement, document or instrument related thereto as in effect on the date hereof except, that, Borrower may, after prior written notice to Lender, amend, modify, alter or change the terms thereof so as to extend the maturity thereof, or defer the timing of any payments in respect thereof, or to forgive or cancel any portion of such Indebtedness (other than pursuant to payments thereof), or to reduce the interest rate or any fees in connection therewith, or (B) redeem, retire, defease, purchase or otherwise acquire such Indebtedness, or set aside or otherwise deposit or invest any sums for such purpose, and (iii) Borrower shall furnish to Lender all notices or demands in connection with such Indebtedness either received by Borrower or on its behalf, promptly after the receipt thereof, or sent by Borrower or on its behalf, concurrently with the sending thereof, as the case may be; and
(xivh) Indebtedness approved of Borrower to its Subsidiaries in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securitiesaccordance with Section 9.10(g) hereof.
Appears in 2 contracts
Samples: Loan and Security Agreement (American Biltrite Inc), Loan and Security Agreement (Congoleum Corp)
Indebtedness. Such Obligor The Borrower will not, and nor will not it permit any of its Subsidiaries to, create, incur, assume or permit to exist any Indebtedness, whether directly or indirectly, except:
(ia) the ObligationsIndebtedness created hereunder;
(b) Secured Longer-Term Indebtedness and Unsecured Longer-Term Indebtedness in an aggregate amount that (i) taken together with other then-outstanding Indebtedness, does not exceed the amount required to comply with the provisions of Section 6.07(b) and (ii) in the case of Secured Longer-Term Indebtedness, taken together with Indebtedness owing permitted under the Non-Convertible Credit Facility Loan Documents clauses (a) and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount (g) of all such Indebtedness shall this Section 6.01 does not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereofBorrowing Base;
(iiic) Indebtedness owing under the Convertible Credit Facility Loan Documents and Other Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement)Indebtedness;
(ivd) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required HoldersFinancing Subsidiaries;
(ve) accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred repurchase obligations arising in the ordinary course of such Obligor’s or any of its 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 GAAPrespect to U.S. Government Securities;
(vif) Indebtedness consisting obligations payable to clearing agencies, brokers or dealers in connection with the purchase or sale of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries securities in the ordinary course of business;
(viig) Secured Shorter-Term Indebtedness of any Obligor to any other Obligor; provided that, in each case, such and Unsecured Shorter-Term Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount (determined at the time of the incurrence of such Indebtedness) not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course 5% of business equipment financing; provided Shareholders’ Equity and that (i) if securedtaken together with other then-outstanding Indebtedness, does not exceed the collateral therefor consists solely amount required to comply with the provisions of the assets being financed, the products and proceeds thereof and books and records related thereto, Section 6.07(b) and (ii) the aggregate outstanding principal amount taken together with Indebtedness permitted under clause (a), and Secured Longer Term Indebtedness permitted under clause (b), of such Indebtedness this Section 6.01, does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its AffiliatesBorrowing Base; and
(xivh) Indebtedness approved obligations (including Guarantees) in advance in writing by the Holders respect of at least a majority in aggregate principal amount of the outstanding SecuritiesStandard Securitization Undertakings.
Appears in 2 contracts
Samples: Amended and Restated Senior Secured Revolving Credit Agreement (Apollo Investment Corp), Senior Secured Revolving Credit Agreement (Apollo Investment Corp)
Indebtedness. Such Obligor will not, and will not permit Neither Borrower nor any of its Subsidiaries toSubsidiaries, without prior written consent of Lender, will create, incur, assume assume, or permit suffer to exist liability for, contingently or otherwise (including, without limitation, any Indebtednessguaranty of the indebtedness of another person), any indebtedness for borrowed money if Borrower's consolidated debt to equity ratio, determined in accordance with GAAP but after giving effect to such indebtedness and (whether directly or indirectlynot in accordance with GAAP) treating any guaranty of the indebtedness of another person as an indebtedness of Borrower in the amount covered by such guaranty, exceptshall be greater than 3 to 1, except that the following shall be permitted in any event and shall not be included in the calculation of the above debt to equity ratio:
(ia) the Obligationscurrent indebtedness of Borrower to Xxxxxx CMG, Inc.;
(iib) Indebtedness owing under the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereof;
(iii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) accounts payable to unsecured current liabilities incurred with trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of such Obligor’s business other than those which are for money borrowed or any of its Subsidiaries’ business in accordance with customary terms and paid within the specified timeare evidenced by bonds, unless contested in good faith by appropriate proceedings and reserved for in accordance with GAAPdebentures, notes or other similar instruments;
(vic) Indebtedness consisting of guarantees resulting Money borrowed from endorsement of negotiable instruments for collection by any Obligor banks or any of its Subsidiaries other financial institutions in the ordinary course of business;
(vii) Indebtedness business and solely for the purpose of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to purchasing securities for the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor account of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if securedany Subsidiary of Borrower that is registered as a broker/dealer under the Securities Exchange Act of 1934, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition)as amended, or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance customer margin accounts of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v)such subsidiary;
(xid) contingent notes or similar written instruments executed in the ordinary course of business and solely for the purpose of providing fidelity bond insurance and insurance of customer accounts in excess of the coverage provided by the Securities Investor Protection Corporation (SIPC); and
(e) purchase money mortgage obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business that do not exceed $1,000,000 in the aggregate of Borrower and of its Subsidiaries, on a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting servicesconsolidated basis, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securitiestime.
Appears in 2 contracts
Samples: Promissory Note and Loan Agreement (Wilmington Trust Corp), Promissory Note and Loan Agreement (Jw Charles Financial Services Inc/Fl)
Indebtedness. Such Obligor will (i) The Borrower shall not, and will shall not permit any of its Subsidiaries Subsidiary to, directly or indirectly, create, incur, assume or permit to exist any Indebtednessguaranty, whether or otherwise become or remain directly or indirectly, except:
indirectly liable with respect to any Indebtedness other than (iwithout duplication) the Obligations;
(iia) Indebtedness owing payable after the scheduled Maturity Date, (b) Assurant Commercial Paper Debt, (c) Indebtedness secured by Liens permitted by Section 6.1(viii), (ix) or (xiv), (d) Indebtedness owed to the Borrower or a Subsidiary, (e) Indebtedness arising under letters of credit issued for the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; account of the Borrower and/or any Subsidiary, (f) Indebtedness of a Person that becomes a Subsidiary, or is merged into the Borrower or a Subsidiary, after the Effective Date, provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereof;
(iii1) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) 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 such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds anticipation thereof and books and records related thereto, and (ii2) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 100,000,000 at any time outstanding, (g) Indebtedness of the Borrower or any Subsidiary arising under Interest Rate Agreements and Currency Agreements, provided that such agreements are entered into to hedge bona fide business risks and not for speculation, (h) Indebtedness arising under this Agreement and (i) other Indebtedness having an aggregate principal amount not exceeding $100,000,000 at any time outstanding. For purposes of determining compliance with this clause (i), in the Equivalent Amount event that an item of proposed Indebtedness meets the criteria of more than one of the categories above, the Borrower will be permitted to classify the item of Indebtedness on the date of its borrowing, incurrence, creation or assumption, or later reclassify all or a portion of the item of Indebtedness, in other currenciesany manner that complies with this clause (i).
(ii) The Borrower shall not permit the aggregate outstanding principal amount of all Indebtedness of its Subsidiaries to exceed 5% of Consolidated Adjusted Net Worth at any time;
; provided that the following Indebtedness shall be excluded in determining whether Indebtedness of Subsidiaries exceeds 5% of Consolidated Adjusted Net Worth: (xa) Indebtedness described in Section 6.2(i)(a), and in Section 6.2(i)(c) through (i)(g), (b) Indebtedness of the type described in clause (vii), (viii) or (ix) of the definition of Indebtedness incurred by any Subsidiary with respect to the obligations of any Obligor or any one of its Subsidiaries and (ic) for indemnification, adjustment Indebtedness of purchase price or similar obligations the type described in clause (including for the deferred purchase price of property acquired in a Permitted Acquisition), viii) or (iiix) under guaranties or letters of credit, surety bonds or performance bonds securing the performance definition of any Obligor or any of its Subsidiaries, in each case, Indebtedness incurred in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred insurance products offered by Subsidiaries in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securitiesbusiness.”
Appears in 2 contracts
Samples: Credit Agreement (Fortis Benefits Insurance Co), Credit Agreement (First Fortis Life Insurance Co)
Indebtedness. Such Obligor will The Credit Parties shall not, and will not permit any of its Subsidiaries toeither directly or indirectly, create, incurassume, assume incur or permit to exist have outstanding any IndebtednessFunded Indebtedness (including purchase money indebtedness), or become liable, whether directly as endorser, guarantor, surety or indirectlyotherwise, for any debt or obligation of any other Person, except:
(ia) the Obligations;
(iib) Funded Indebtedness owing and all other obligations under the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereofDebenture Documents;
(iiic) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) 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 such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by or deposit of any Obligor or any of its Subsidiaries commercial paper secured in the ordinary course of business;
(viid) obligations for taxes, assessments, municipal or other governmental charges; provided, the same are being contested in good faith by appropriate proceedings and are insured against or bonded over to the satisfaction of the Lender;
(e) obligations for accounts payable, other than for money borrowed, incurred in the ordinary course of business;
(f) obligations existing on the date hereof which are disclosed on the financial statements referred to in Section 7.7;
(g) unsecured intercompany Funded Indebtedness;
(h) Funded Indebtedness existing on the Closing Date and set forth in Schedule 8.1, including any extensions or refinancings of any Obligor to any other Obligorthe foregoing, which do not increase the principal amount of such Funded Indebtedness as of the date of such extension or refinancing; provided that, in each case, such Funded Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory owed to the Required HoldersLender pursuant to a subordination agreement, in form and content acceptable to Lender in its sole discretion;
(viiii) Guarantees Funded Indebtedness consisting of Capital Lease obligations or secured by any Obligor Permitted Liens of Indebtedness the type described in clause (g) of any other Obligor the definition thereof not to exceed $250,000 in an the aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any timetime without the Lender’s prior written approval;
(ixj) normal course Contingent Liabilities arising with respect to customary indemnification obligations in favor of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, purchasers in connection with transactions dispositions permitted under Section 9(c)(v);hereunder.
(xik) contingent obligations with respect to performance guaranties and surety bonds Contingent Liabilities incurred in the ordinary course of business with respect to surety and of a type appeal bonds, performance bonds and amount consistent with past practices of the Obligors and their Subsidiariesother similar obligations;
(xiil) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not Contingent Liabilities arising under indemnity agreements to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior title insurers to cause such title insurers to issue to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding SecuritiesLender title insurance policies.
Appears in 2 contracts
Samples: Credit Agreement (National Automation Services Inc), Credit Agreement (National Automation Services Inc)
Indebtedness. Such Obligor No Borrower will, or will not, and will not permit any of its Subsidiaries to, contract, create, incur, assume or permit suffer to exist any Indebtedness, whether directly Indebtedness or indirectlyInterest Rate Protection Agreements or Other Hedging Agreements, except:
(i) the Obligations;
(ii) Existing Indebtedness owing (not constituting Capitalized Lease Obligations, which shall be required to be justified under following clause (v)) outstanding on the Non-Convertible Closing Date and listed on Schedule IX;
(iii) Interest Rate Protection Agreements entered into with respect to other Indebtedness permitted under this Section 10.04 so long as the entering into of such Interest Rate Protection Agreements are bona fide hedging activities and are not for speculative purposes;
(iv) Other Hedging Agreements providing protection to Aleris and its Subsidiaries against fluctuations in currency values and commodity prices so long as the entering into of such Other Hedging Agreements are bona fide hedging activities and are not for speculative purposes;
(v) Indebtedness of Aleris and its Subsidiaries (other than the European Distribution Subsidiaries) evidenced by Capitalized Lease Obligations and Synthetic Lease Obligations (to the extent permitted by Section 10.01(vi)) and purchase money Indebtedness secured by Liens described in Section 10.01(vii), provided that in no event shall the sum of the aggregate principal amount of all Capitalized Lease Obligations, Synthetic Lease Obligations and purchase money Indebtedness permitted by this clause (v) exceed the greater of $175,000,000 or 10% of Consolidated Total Assets at any time outstanding;
(vi) intercompany Indebtedness among Aleris and its Subsidiaries to the extent permitted by Sections 10.05(viii), (xiv) or (xvi);
(vii) Indebtedness under term loans or senior notes in an initial aggregate principal amount not to exceed $25,000,000;
(viii) Indebtedness consisting of guaranties by Aleris and its Subsidiaries of each other’s Indebtedness or other obligations of any such Persons permitted under Section 10.05(viii), (xiv) or (xvi);
(ix) cash management obligations and other Indebtedness in respect of netting services, overdraft protections and similar arrangements in each case in connection with deposit accounts;
(x) Permitted Refinancing Indebtedness;
(xi) to the extent that same constitutes Indebtedness, indemnification obligations, purchase price or other similar adjustments in connection with acquisitions and dispositions permitted hereunder;
(xii) Indebtedness of Aleris or any Subsidiary of Aleris (other than the European Borrower and its Subsidiaries) acquired pursuant to a Permitted Acquisition or other acquisition of an Acquired Business or Entity permitted pursuant to Section 10.05 (or Indebtedness assumed at the time of a Permitted Acquisition or such other acquisition permitted pursuant to Section 10.05), provided that (x) such Indebtedness was not incurred in connection with, or in anticipation or contemplation of, such Permitted Acquisition or other acquisition permitted pursuant to Section 10.05, (y) the aggregate principal amount of all Indebtedness permitted by this clause (xii) shall not exceed $50,000,000 at any one time outstanding;
(xiii) Indebtedness in respect of letters of credit (other than Letters of Credit Facility Loan Documents and Permitted Refinancings thereofissued pursuant to this Agreement) or bank guarantees; provided that the aggregate outstanding principal face amount of all any such Indebtedness letters of credit or bank guarantees that are secured shall not exceed $10,000,000 outstanding at any time one time, and any security therefor shall be limited to cash collateral including by providing security over an Exempted Deposit Account in accordance with clause (E) of the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal definition thereof;
(iiixiv) unsecured Indebtedness owing under of Aleris the Convertible net cash proceeds of which are used to consummate one or more Permitted Acquisitions or other acquisitions of Acquired Entities or Businesses permitted pursuant to Section 10.05. (“Additional Debt”); provided that (x) (A) the terms of such Additional Debt shall not contain any cross-default provisions (other than for material non-payment at final maturity, and may include a cross-acceleration provision), (B) the terms of the Additional Debt shall not contain any financial maintenance covenants, (C) the Additional Debt shall not be secured by any asset of Aleris or any of its Subsidiaries and shall not be guaranteed by Aleris or any Subsidiary of Aleris other than another Credit Facility Loan Documents Party, and Permitted Refinancings thereof(D) no portion of the principal of the Additional Debt shall be scheduled to be redeemed, repurchased or otherwise repaid or prepaid (other than as a result of a change of control, customary offers upon asset sales, acceleration or such other provision as shall be customary for comparable high-yield debt securities) prior to the date that is six months after the Final Maturity Date and (y) solely at the time of the incurrence of such Indebtedness after giving effect to the incurrence of such Indebtedness, (I) the Fixed Charge Coverage Ratio is at least 1.0 to 1.0 for the immediately preceding 12-month period as of the most recently ended Fiscal Quarter for which Final Statements have been delivered pursuant to Section 9.01(b), and (II) no Default or Event of Default shall exist or would result therefrom; and
(xv) Attributable Debt incurred by Aleris or any Subsidiary pursuant to Sale and Lease-Back Transactions of property (real or personal), equipment or other fixed or capital assets owned by Aleris or any Subsidiary as of the Original Closing Date or acquired by Aleris or any Subsidiary after the Original Closing Date in exchange for, or with the proceeds of the sale of, such assets owned by Aleris or any Subsidiary as of the Original Closing Date and any Refinancing Indebtedness incurred to refund, replace or refinance any Indebtedness, Disqualified Stock or Preferred Stock incurred pursuant to this clause (xv); provided that the aggregate outstanding principal amount of all such Indebtedness shall Attributable Debt incurred under this clause (xv) does not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement)35,000,000;
(ivxvi) Indebtedness existing on August 28owed to any Person providing workers’ compensation, 2015 health, disability or other employee benefits (including contractual and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided thatstatutory benefits) or property, casualty, liability or credit insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) case incurred in the ordinary course of such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(viixvii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor Borrower or any of its Subsidiaries (i) for indemnificationin respect of performance bonds, adjustment of purchase price or bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition)obligations, or (ii) under guaranties or obligations in respect of letters of credit, surety bonds bank guarantees or performance bonds securing similar instruments related thereto, in each case provided in the performance ordinary course of business;
(xviii) Indebtedness consisting of promissory notes issued by any Credit Party to current or former officers, 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 thereof) or of Aleris (following a Qualified Public Offering of Aleris) permitted by Section 10.03;
(xix) Indebtedness consisting of obligations of any Obligor Borrower or any of its SubsidiariesSubsidiaries under deferred compensation or other similar arrangements incurred by such Person in connection with the Transaction, Permitted Acquisitions or any other Investment expressly permitted hereunder;
(xx) Indebtedness consisting of (x) the financing of insurance premiums or (y) take-or-pay obligations contained in supply arrangements, in each case, in connection with transactions permitted under Section 9(c)(v)the ordinary course of business;
(xixxi) contingent obligations with Indebtedness incurred by any Borrower or any of its Subsidiaries in respect to performance guaranties and surety bonds incurred of documentary letters of credit, bank guarantees, bankers’ acceptances or similar instruments issued or created in the ordinary course of business business; provided that any such documentary letter of credit or other similar instrument may be secured only by Liens attaching to the related documents of title and of a type and amount consistent with past practices of the Obligors and their Subsidiariesnot any Inventory represented thereby;
(xiixxii) obligations Indebtedness supported by a Letter of Credit, in respect a principal amount not to exceed the face amount of netting services, overdraft protections and other similar cash management products for deposit accountssuch Letter of Credit;
(xiiixxiii) Unsecured Indebtedness under the IntermediateCo Notes in an aggregate principal amount of up to $50,000,000, issued by Holdings;
(xxiv) Indebtedness in an aggregate principal amount at any time outstanding of up to $50,000,000 solely to the extent the Net Cash Proceeds thereof are applied to finance a Permitted Acquisition;
(xxv) unsecured senior notes in an aggregate principal amount at any time outstanding of up to $50,000,000, or unsecured subordinated notes; provided that in either case, such Indebtedness does not provide for annual amortization of more than 1% and such debt matures more than 90 days after the Final Maturity Date;
(xxvi) Indebtedness to finance the purchase of Inventory (other than U.K. Inventory included in the Collateral) by European Subsidiaries of Aleris;
(xxvii) Indebtedness of Foreign Subsidiaries that are not Credit Parties (to the extent such Indebtedness is not guaranteed by a Credit Party);
(xxviii) the New Senior Unsecured Notes;
(xxix) Indebtedness pursuant to a declaration of joint and several liability used for the purpose of Section 2:403 of the Dutch Civil Code (and any residual liability under such declaration arising pursuant to section 2:404(2) of the Dutch Civil Code);
(A) secured Indebtedness of Aleris and its Subsidiaries (other than the European Distribution Subsidiaries) in an aggregate principal amount at any time outstanding of up to the greater of (i) $500,000,000; and (ii) an unlimited principal amount if solely at the time of the incurrence of such Indebtedness the Senior Secured Leverage Ratio determined on a Pro Forma Basis is not greater than 3.5 to 1.0 on the date of such incurrence, and (B) unsecured Indebtedness of any Obligor not otherwise described Aleris and its Subsidiaries (other than the European Distribution Subsidiaries) in this Section 9(a)an unlimited principal amount so long as no Default or Event of Default exists or would be caused thereby; provided that, in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any either case, such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer does not provide for annual amortization of Issuer or any of its Affiliatesmore than 1% and such debt matures more than 60 days after the Final Maturity Date; and
(xivxxxi) Indebtedness approved in advance in writing constituting an Investment permitted by Section 10.05. Notwithstanding the Holders of at least a majority in aggregate principal amount foregoing, Indebtedness of the outstanding SecuritiesEuropean Borrower permitted pursuant to clauses (v), (xxiv), (xxv), (xvii), (xxi) and (xxx) of this Section 10.04 shall not exceed $5,000,000 at any time outstanding. The accrual of interest and the accretion or amortization of original issue discount on Indebtedness and the payment of interest in the form of additional Indebtedness originally incurred in accordance with this Section 10.04 will not constitute an incurrence of Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement (Aleris Ohio Management, Inc.), Credit Agreement (Aleris International, Inc.)
Indebtedness. Such Obligor The Borrowers will not, and nor will not they permit any of its Subsidiaries other Loan Party or Subsidiary to, create, incur, assume or permit suffer to exist any Indebtedness, whether directly except (collectively, the “Permitted Indebtedness”):
(a) Indebtedness under the Loan Documents;
(b) Subordinated Indebtedness;
(c) Indebtedness (contingent or indirectly, except:
otherwise) of any Loan Party arising under (i) the Obligations;
any Swap Contract with a Swap Party or (ii) Indebtedness owing under to the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereofextent approved by the Lender in advance in writing, any other Swap Contract; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereof;
(iii) Indebtedness owing under the Convertible Credit Facility obligations are entered into by a Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred Party in the ordinary course of business for the purpose of mitigating risks associated with liabilities, commitments, investments, assets or property held or reasonably anticipated by such Obligor’s Person, or any changes in the value of its Subsidiaries’ business in accordance with customary terms securities issued by such Person, and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved not for in accordance with GAAPspeculative purposes;
(vid) Indebtedness consisting in respect of guarantees performance bonds, bid bonds, appeal bonds, surety bonds and similar obligations not in connection with money borrowed, in each case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business, and in an aggregate amount issued not to exceed $2,000,000 (or such higher amount as may be approved by the Lender in writing);
(e) Indebtedness resulting from endorsement a bank or other financial institution honoring a check, draft or similar instrument in the ordinary course of negotiable instruments for collection by any Obligor business or any of its Subsidiaries arising under or in connection with cash management services in the ordinary course of business;
(viif) Indebtedness arising from or incurred with respect to Capitalized Leases, Purchase Money Security Interests or other title retention agreements and leases that are in the nature of any Obligor title retention agreements in an amount not to any other Obligor; provided that, in each case, exceed (i) if such Indebtedness is unsecured reflected in the then-current Approved Budget, the amount set forth in such Approved Budget, and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viiiii) Guarantees by any Obligor of Indebtedness of any in all other Obligor in cases, an aggregate principal amount not exceeding to exceed $1,150,000 (or the Equivalent Amount in other currencies) 2,500,000 at any time;
(ixg) normal Indebtedness set forth on Schedule 6.1;
(h) Indebtedness arising under guaranties made in the ordinary course of business equipment financing; provided that of obligations of any Loan Party (and only so long as such Person is and remains a Loan Party) which obligations are otherwise permitted hereunder;
(i) if secured, the collateral therefor consists solely subject to satisfaction of the assets being financedSTORE Sale-Leaseback Conditions, Indebtedness of Hollandia Real Estate under the products and proceeds thereof and books and records related theretoSTORE Documents;
(j) subject to satisfaction of the STORE Sale-Leaseback Conditions, Indebtedness in the form of the STORE Guaranty, but only so long as (i) Holdings is the sole guarantor under the STORE Guaranty, and (ii) the STORE Guaranty is unsecured;
(k) subject to satisfaction of the STORE Sale-Leaseback Conditions, Indebtedness arising under the STORE Letter of Credit up to an aggregate outstanding face amount not to exceed $6,825,000;
(l) other Indebtedness, but only so long as, immediately following the incurrence thereof, the aggregate principal amount of all such Indebtedness permitted under this clause (l) does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates2,000,000; and
(xivm) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding SecuritiesLoan Party to any other Loan Party.
Appears in 2 contracts
Samples: Credit Agreement (Local Bounti Corporation/De), Credit Agreement (Local Bounti Corporation/De)
Indebtedness. Such Obligor will Each Borrower shall not, and will shall not permit any of its Subsidiaries to, create, issue, incur, assume assume, become liable in respect of or permit to exist any Indebtedness, whether directly or indirectly, except:
(ia) Indebtedness in respect of the Obligations;
(iib) Indebtedness owing under evidencing the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount deferred purchase price of any newly acquired specific fixed asset consisting of personal property, or incurred to finance all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereof;
(iii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 or part of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) accounts payable to trade creditors for goods and services and current operating liabilities (not the result acquisition of the borrowing of money) incurred in the ordinary course equipment of such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor Borrowers or any of its Subsidiaries (ipursuant to purchase money security interest Indebtedness or otherwise, whether owed to the seller or a third party); provided that such Indebtedness is incurred within ninety (90) for indemnificationdays of the acquisition of such property and in respect of Capital Lease Obligations; and provided further that the aggregate amount of all Indebtedness outstanding pursuant to this clause (b) shall not at any time exceed $5,000,000 (or, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired if denominated in a Permitted Acquisitionnon-Dollar currency, the Dollar Equivalent thereof calculated as of the date of such acquisition);
(c) Indebtedness pursuant to any Hydrocarbon Hedge Agreement or Interest Hedge Agreement (in each case, or not being a Designated Hedge Agreement); provided that such Hedge Agreement otherwise complies with the terms of Section 8.14;
(iid) under guaranties or Indebtedness of an Obligor to another Obligor that is subordinated in priority and right of payment to the Obligations on terms reasonably satisfactory to the Majority Lenders;
(e) Indebtedness of the Borrowers with respect to standby letters of credit, surety bank guarantees, indemnities, sureties or bonds provided to any Governmental Authority or performance bonds securing other Person and assuring payment of contingent liabilities of the performance of any Obligor or any of its Subsidiaries, in each case, Borrowers and their Subsidiaries in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations the operations of their respective businesses or the operation of the Hydrocarbon Interests, including with respect to performance guaranties plugging, facility removal, environmental remediation and surety bonds incurred in the ordinary course abandonment of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a)its Hydrocarbon Interests, in an aggregate amount not to exceed $2,500,000 (or, if denominated in a non-Dollar currency, the Dollar Equivalent thereof calculated as of the date of such incurrence) at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliatestime; and
(xivf) Indebtedness approved described in advance in writing by the Holders of at least a majority in aggregate principal amount Item 8.1(f) of the outstanding SecuritiesDisclosure Schedule. For the avoidance of doubt, nothing in this Section 8.1 shall restrict the Parent or its Subsidiaries (other than the Borrowers and their respective Subsidiaries) from issuing, incurring, assuming, or becoming liable in respect of any Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement (Transatlantic Petroleum Ltd.), Credit Agreement (Transatlantic Petroleum Ltd.)
Indebtedness. Such Obligor will Borrower shall not, and will shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or permit to exist guaranty, or otherwise become or remain directly or indirectly liable with respect to, any Indebtedness, whether directly or indirectly, except:
(i) Borrower may become and remain liable with respect to the Obligations;
(ii) Borrower and its Subsidiaries may become and remain liable with respect to Contingent Obligations permitted by subsection 7.4 and, upon any matured obligations actually arising pursuant thereto, the Indebtedness owing under the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added corresponding to the principal thereofContingent Obligations so extinguished;
(iii) Borrower and its Subsidiaries may become and remain liable with respect to Indebtedness owing under (including in respect of Capital Leases) incurred to provide all or a portion of the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that purchase price or cost of construction of an asset in an aggregate amount not to exceed $2,500,000 at any one time so long as (i) the aggregate outstanding principal amount of all such Indebtedness when incurred shall not exceed the purchase price or the cost of construction of such asset, and (ii) no such Indebtedness shall not exceed at any time the sum be refinanced for a principal amount in excess of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under balance outstanding thereon at the Fee Letter (as defined in the Convertible Credit Facility Agreement)time of such refinancing;
(iv) Borrower may become and remain liable with respect to unsecured Indebtedness existing on August 28to any of its wholly-owned domestic Subsidiaries, 2015 and set forth any wholly-owned domestic Subsidiary of Borrower may become and remain liable with respect to unsecured Indebtedness to Borrower or any other wholly-owned domestic Subsidiary of Borrower; PROVIDED that (a) to the extent the principal amount of such Indebtedness in Schedule 9.01 the aggregate is equal to or greater than $250,000, all such intercompany Indebtedness shall be evidenced by promissory notes, (b) all such intercompany Indebtedness owed by Borrower to any of its Subsidiaries shall be subordinated in right of payment to the payment in full of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement, (c) any payment by any Subsidiary of Borrower under any guaranty of the Obligations on terms satisfactory shall result in a PRO TANTO reduction of the amount of any intercompany Indebtedness owed by such Subsidiary to the Required Holders;Borrower or to any of its Subsidiaries for whose benefit such payment is made; 105
(v) accounts payable Borrower and its Subsidiaries may remain liable with respect to trade creditors for goods and services and current operating liabilities (not the result Indebtedness outstanding as of the borrowing of money) incurred Closing Date as referenced in the ordinary course financial statements delivered pursuant to subsection 4.1E (and set out more specifically in SCHEDULE 7.1 annexed hereto) and renewals, refinancings or extensions thereof in a principal amount not in excess of that outstanding as of the date of such Obligor’s renewal, refinancing or any of its 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 GAAPextensions;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of Borrower and its Subsidiaries in the ordinary course of business;
(vii) may become and remain liable with respect to other Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding to exceed $1,150,000 (or the Equivalent Amount in other currencies) 500,000 at any timetime outstanding;
(ixvii) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products Borrower and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations may become and remain liable with respect to performance guaranties and surety bonds Indebtedness incurred in the ordinary course of business and under documentary letters of a type and amount consistent with past practices credit for the purpose of the Obligors and their Subsidiaries;
goods or other merchandise (xiibut not under standby, direct pay or other letters of credit) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), generally in an aggregate face amount not to exceed $5,000,000; and
(viii) Borrower and its Subsidiaries may become and remain liable with respect to Indebtedness to sellers or other third Persons in connection with Permitted Acquisitions in an aggregate principal amount not to exceed at any time outstanding $5,750,00025,000,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing is Subordinated Indebtedness pursuant to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved a subordination agreement in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securitiesform and substance reasonably acceptable to Administrative Agent.
Appears in 2 contracts
Samples: Credit Agreement (Integrated Defense Technologies Inc), Credit Agreement (Integrated Defense Technologies Inc)
Indebtedness. Such Obligor The Company will not, and will not permit any of its Subsidiaries to, create, incur, assume or permit suffer to exist any Indebtedness, whether directly or indirectly, except:
(ia) Indebtedness created pursuant to this Agreement and the ObligationsNotes;
(iib) Indebtedness of any Subsidiary owing under to any Obligor or any Wholly Owned Subsidiary of any Obligor;
(c) Indebtedness of the Non-Convertible Credit Facility Loan Documents Company or any Subsidiary incurred after the Date of Closing to finance the acquisition, construction or improvement of any fixed or capital assets, including Capitalized Lease Obligations and Permitted Refinancings 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 such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvements or extensions, renewals, and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (immediately prior to giving effect to such extension, renewal or replacement) or shorten the maturity or the weighted average life thereof; provided further, that the aggregate outstanding principal amount of all such Indebtedness shall does not exceed $30,000,000 at any time outstanding;
(d) Guarantees by the sum Company of $35,000,000 Indebtedness of any other Obligor and Guarantees by any Obligor of Indebtedness of the Company;
(e) Loans by the Company to its Foreign Subsidiaries, provided that the amount of interest thereon compounded and added such loans, together with the amount of Guaranteed Indebtedness permitted to the principal thereofbe incurred under clause (h) below, does not exceed $30,000,000 at any time;
(iiif) Guarantees by the Company of Indebtedness owing under of certain franchise operators of the Convertible Credit Company, provided such guarantees are given by the Company in connection with (1) loans made pursuant to the terms of the SunTrust Loan Facility Loan Documents and Permitted Refinancings thereof; provided that Agreement, (2) loans made pursuant to the RIMCO Agreement in an aggregate outstanding principal amount not to exceed $7,500,000, (3) loans made by SunTrust to finance the purchase of all such Indebtedness shall equity interests in certain franchises of the Company in an aggregate principal amount not to exceed at any time $20,000,000, (4) loans made pursuant to terms of the sum of $69,095,709 and the amount of interest thereon compounded and added loan agreement relating to the Rosey Rentals Guarantee in an aggregate principal thereofamount not to exceed Forty Million Dollars ($40,000,000), and Indebtedness under (5) loans made pursuant to the Fee Letter terms of the RBC Agreement in an aggregate principal amount not to exceed Fifty Million Canadian Dollars (as defined in the Convertible Credit Facility AgreementCdn. $50,000,000);
(ivg) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) 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 such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of Endorsed negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(viih) Guarantees by the Company of Indebtedness of Foreign Subsidiaries, provided that the sum of the aggregate principal amount of such Guarantees, together with the principal amount of any Obligor loans from the Company to Foreign Subsidiaries permitted pursuant to paragraph 6I(f) hereof does not exceed $30,000,000 in the aggregate at any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holderstime;
(viiii) Guarantees by any Obligor Indebtedness existing on the Date of Indebtedness Closing and set forth on Schedule 6E and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (immediately prior to giving effect to such extension, renewal or replacement) or shorten the maturity or the weighted average life thereof;
(j) Indebtedness under the SunTrust Agreement;
(k) Indebtedness under the Existing Note Purchase Agreement;
(l) Indebtedness in respect of Private Placement Debt (other Obligor than Private Placement Debt incurred in respect of the Existing Note Purchase Agreement and this Agreement) in an aggregate principal amount not exceeding to exceed $1,150,000 (or the Equivalent Amount in other currencies) at any time;100,000,000; and
(ixm) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) Other unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate principal amount not to exceed $75,000,000 at any time $5,750,000; outstanding, provided that Issuer no Default or Event of Default shall give exist immediately prior to, or as the Holders result of, the incurrence or assumption of at least a majority in aggregate principal amount such Indebtedness.”
4. Paragraph 6G of the outstanding Securities written notice prior Existing Note Purchase Agreement is hereby amended and restated in its entirety to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securities.read as follows:
Appears in 2 contracts
Samples: Note Purchase Agreement (Aaron Rents Inc), Note Purchase Agreement (Aaron Rents Inc)
Indebtedness. Such Obligor will not, It shall not and will shall not permit any of its Subsidiaries to, directly or indirectly create, incur, assume or permit suffer to exist any Indebtedness, whether directly or indirectly, except:except for the following (such Indebtedness described below being referred to herein as “Permitted Indebtedness”):
(ia) Indebtedness under the ObligationsLoan Documents or any Hedging Agreement;
(iib) Indebtedness owing under outstanding prior to the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and Closing Date in the amount of interest thereon compounded and added as otherwise set forth in Schedule 8.03 and, solely with respect to the principal thereoffacility provided by ABN Amro as specified on Schedule 8.03, any Permitted Indebtedness Refinancing in respect of such facility;
(iiic) guarantees of any Credit Party in respect of Indebtedness owing of the Credit Parties otherwise permitted hereunder;
(d) intercompany Indebtedness permitted under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility AgreementSection 8.02(d);
(ive) (i) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; Company and its Subsidiaries in respect of performance, surety or appeal bonds provided thatin the ordinary course of business or (ii) unsecured Indebtedness of the Company and its Subsidiaries in respect of performance or completion guarantees provided in the ordinary course of business, but excluding, in each case, such Indebtedness is subordinated to incurred through the Obligations on terms satisfactory to borrowing of money or contingent liabilities in respect thereof and provided that the Required Holdersaggregate amount of all Indebtedness under this Section 8.03(e), when added together with all Indebtedness consisting of performance, surety or appeal bonds and performance guarantees permitted under Section 8.03(b), does not exceed $60,000,000 outstanding at any time;
(vf) accounts payable to trade creditors for goods and services and current operating liabilities (not the result Indebtedness of the borrowing of money) incurred in the ordinary course of such Obligor’s or any of its Subsidiaries’ business in accordance with customary terms Company and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for in accordance with GAAP;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in respect of trade payables and accrued expenses arising in the ordinary course of business;
(viig) 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, so long as such Indebtedness is extinguished within five (5) Business Days of its incurrence;
(h) Indebtedness which may be deemed to exist in connection with agreements providing for indemnification, purchase price adjustments and similar obligations in connection with the acquisition or disposition of assets in accordance with the requirements of this Agreement;
(i) Indebtedness of any Obligor to any other Obligor; provided thatthe Borrower and its Subsidiaries evidenced by Capitalized Lease Obligations and purchase money Indebtedness, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding to exceed $1,150,000 (or the Equivalent Amount in other currencies) 2,000,000 at any timetime outstanding;
(ixj) normal course Indebtedness of business equipment financing; provided that Xxxxxx Europe under (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, a revolving credit facility in an amount not to exceed €1,000,000 and (ii) the aggregate outstanding principal a letter of credit facility in an amount of such Indebtedness does not to exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time€5,000,000;
(xk) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), Xxxxxx Shanghai in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates2,000,000; and
(xivl) so long as no Default or Event of Default then exists or would result therefrom, additional Indebtedness approved not otherwise permitted hereunder in advance in writing by the Holders of at least a majority in an aggregate principal amount of the outstanding Securitiesnot to exceed $1,000,000 at any time outstanding.
Appears in 2 contracts
Samples: Credit Agreement (Global Power Equipment Group Inc/), Credit Agreement (Global Power Equipment Group Inc/)
Indebtedness. Such Obligor will not, and will not permit any Without the consent of its Subsidiaries toLender incur, create, incur, assume or permit to exist any Indebtednessexist, whether directly or indirectly, any Indebtedness, except, without duplication:
(a) Indebtedness incurred under this Agreement and the other Loan Documents;
(b) Indebtedness outstanding on the Closing Date and listed on Schedule 6.01(b);
(c) unsecured (except to the extent permitted under Section 6.02(p)) Indebtedness under Hedging Obligations that are designed to protect against fluctuations in interest rates, foreign currency exchange rates or commodity prices, in each case entered into in the ordinary course of business and not for speculative purposes; provided that if such Hedging Obligations relate to interest rates, (i) such Hedging Obligations relate to payment obligations on Indebtedness otherwise permitted to be incurred by the Loan Documents and (ii) the notional principal amount of such Hedging Obligations at the time incurred does not exceed the principal amount of the Indebtedness to which such Hedging Obligations relate;
(d) Indebtedness permitted by Section 6.04;
(e) Indebtedness of Borrower and its Subsidiaries in respect of Purchase Money Obligations and Capital Lease Obligations in an aggregate amount not to exceed $1,000,000 at any time outstanding;
(i) Indebtedness in respect of bid, performance or surety bonds issued for the Obligations;
account of any Company in the ordinary course of business, including guarantees or obligations of any Company with respect to letters of credit supporting such bid, performance or surety obligations (in each case other than for an obligation for money borrowed) and (ii) Indebtedness owing under the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount with respect to letters of all such Indebtedness shall not exceed at credit issued on behalf of any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereof;
(iii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) Company supporting obligations incurred in the ordinary course of such Obligor’s or business, in an aggregate amount under the clause (f) not to exceed $2,500,000 at any of its 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 GAAPtime outstanding;
(vig) Contingent Obligations of any Company in respect of Indebtedness otherwise permitted under this Section 6.01;
(h) Indebtedness consisting arising from the honoring by a bank or other financial institution of guarantees resulting from 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;
(i) Indebtedness arising in connection with endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries deposit in the ordinary course of business;
(viij) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured Borrower and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed $2,500,000 at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliatesoutstanding; and
(xivk) Indebtedness approved which represents a refinancing or renewal of any of the Indebtedness described in advance clauses (b) and (e); provided that (A) any such refinancing Indebtedness is in writing by the Holders of at least a majority in an aggregate principal amount (or aggregate amount, as applicable) not greater than the aggregate principal amount (or aggregate amount, as applicable) of the outstanding SecuritiesIndebtedness being renewed or refinanced, plus the amount of any premiums required to be paid thereon and reasonable fees and expenses associated therewith, (B) 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, and (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 Lender than those contained in the Indebtedness being renewed or refinanced.
Appears in 2 contracts
Samples: Credit Agreement (Kemet Corp), Credit Agreement (Kemet Corp)
Indebtedness. Such Obligor No Borrower shall, nor will not, and will not it permit any of its Subsidiaries to, contract, create, incur, assume or permit suffer to exist any Indebtedness, whether directly or indirectly, except:;
(ia) the Obligations;
(ii) Indebtedness , Hedging Liability, and Bank Product Liability of the Borrowers and their Subsidiaries owing under to the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 Administrative Agent and the amount of interest thereon compounded Lenders (and added to the principal thereof;
(iii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreementtheir Affiliates);
(ivb) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated owed pursuant to the Obligations on terms satisfactory to the Required Holders;
(v) accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred Hedge Agreements entered into in the ordinary course of such Obligor’s business and not for speculative purposes with Persons other than Lenders (or any of its 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 GAAPtheir Affiliates);
(vic) intercompany Indebtedness consisting among the Borrowers, or between or among any Borrower or Borrowers and any Subsidiary or Subsidiaries to the extent permitted by Section 6.14;
(d) Purchase Money Indebtedness and Capitalized Lease Obligations of guarantees resulting from the Borrowers and their Subsidiaries in an amount not to exceed U.S. $50,000,000 in the aggregate at any time outstanding; provided, however, not more than U.S. $15,000,000 of such amount at any one time outstanding shall be permitted for expenditures that are not Capital Expenditures;
(e) endorsement of negotiable instruments or other payment items for deposit or collection by any Obligor or any of its Subsidiaries commercial paper received in the ordinary course of business;
(viif) Indebtedness consisting of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds unsecured guarantees incurred in the ordinary course of business with respect to surety and of a type appeal bonds, performance bonds, bid bonds, appeal bonds, completion guarantee and amount consistent similar obligations; and (ii) unsecured guarantees arising with past practices of the Obligors and their Subsidiariesrespect to customary indemnification obligations to purchasers in connection with permitted dispositions;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiiig) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), Borrower or any Subsidiary in an aggregate principal amount not to exceed U.S. $50,000,000 at any time $5,750,000outstanding that is incurred on the date of the consummation of a Permitted Acquisition solely for the purpose of consummating such Permitted Acquisition; provided that Issuer (i) no Event of Default has occurred and is continuing or would result therefrom, (ii) such unsecured Indebtedness is not incurred for working capital purposes, (iii) such unsecured Indebtedness does not mature prior to that date that is twelve (12) months after the Termination Date, (iv) such Indebtedness is subordinated in right of payment to the Obligations, Hedging Liability and Bank Product Liability on terms and conditions reasonably satisfactory to the Administrative Agent and is otherwise on terms and conditions (including all economic terms and the absence of covenants) reasonably acceptable to the Administrative Agent, and (v) the only interest that accrues with respect to such Indebtedness is payable in kind;
(h) Acquired Indebtedness in an amount not to exceed U.S. $35,000,000 in the aggregate at any time outstanding;
(i) Indebtedness owed to any Person providing property, casualty, liability, or other insurance or the broker therefore or any company providing financing with respect to the premiums for such insurance to or for the benefit of any Borrower or any Subsidiary, so long as the amount of such Indebtedness is not in excess of the amount of the unpaid cost of, and shall give be incurred only to defer the Holders cost of, unpaid insurance premiums for the one year in which such Indebtedness is incurred and such Indebtedness is outstanding only during such year;
(j) unsecured Indebtedness incurred in respect of at least overdraft protection, and other like services, in each case, incurred in the ordinary course of business;
(k) Contingent Obligations of a majority Borrower or a Subsidiary in respect of (i) Indebtedness otherwise permitted hereunder and (ii) Indebtedness of a Controlled Joint Venture to the extent permitted under Section 6.22(a)(i);
(l) to the extent constituting Indebtedness, investments permitted under Section 6.14;
(m) secured Indebtedness of any Borrower or any Subsidiary not otherwise permitted by this Section in an aggregate principal amount of not to exceed U.S. $5,000,000 at any one time outstanding;
(n) Permitted Note Indebtedness;
(o) unsecured Subordinated Debt in an aggregate principal amount not to exceed U.S. $15,000,000 in the outstanding Securities written notice prior to the incurrence of aggregate at any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliatestime outstanding; and
(xivp) unsecured Indebtedness approved of any Borrower and any Subsidiary not otherwise permitted by this Section in advance in writing by the Holders of at least a majority in an aggregate principal amount of not to exceed U.S. $20,000,000 in the outstanding Securitiesaggregate at any time outstanding.
Appears in 2 contracts
Samples: Credit Agreement (Delek Logistics Partners, LP), Credit Agreement (Delek Logistics Partners, LP)
Indebtedness. Such Obligor will Each Borrower and each Guarantor shall not, and will shall not permit any of its Subsidiaries to, incur, create, incurassume, assume become or be liable in any manner with respect to, suffer or permit to exist exist, any IndebtednessIndebtedness or guarantee, whether assume, endorse, or otherwise become responsible for (directly or indirectly) the performance, dividends or other obligations of any Person, except:
(ia) the Obligations;
(iib) purchase money Indebtedness owing under (including Capital Leases) arising after the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that date hereof to the extent secured by purchase money security interests in Equipment (including Capital Leases) not to exceed Twenty Million Dollars ($20,000,000) in the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time outstanding so long as such security interests do not apply to any property of any Borrower, any Guarantor or any of their respective Subsidiaries other than the sum of $35,000,000 Equipment so acquired, and the amount Indebtedness secured thereby does not exceed the cost of interest thereon compounded and added to the principal thereofEquipment so acquired;
(iiic) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that purchase money mortgages on Real Property not to exceed Thirty-Five Million Dollars ($35,000,000) in the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time outstanding so long as such mortgages do not apply to any property of any Borrower, any Guarantor or any of their respective Subsidiaries other than the sum of $69,095,709 Real Property so acquired, and the amount Indebtedness secured thereby does not exceed the cost of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement)Real Property so acquired;
(ivd) guaranties by any Subsidiaries of any Borrower or any Guarantor of the Obligations in favor of Administrative and Collateral Agent, for itself and the ratable benefit of the Lenders and the Bank Product Providers;
(e) Indebtedness existing with respect to any Hedging Transactions; provided, that, such arrangements are: (i) with any Bank Product Provider, any Person that constitutes an Eligible Transferee or any other bank or other financial institution that has combined capital and unimpaired surplus of not less than Five Hundred Million Dollars ($500,000,000), (ii) were entered into for the purpose of protecting such Borrower, such Guarantor or such Subsidiary against fluctuations in interest rates and not for speculative purposes and (iii) except with respect to Indebtedness owed to Bank Product Providers or secured by pledges or deposits of cash pursuant to Section 9.8(k), Indebtedness arising thereunder or in connection therewith is unsecured;
(f) the issuance by Borrower, and guaranties thereof by its Subsidiaries, of no more than $400,000,000 in senior unsecured notes on August 28terms and conditions reasonably satisfactory to Administrative and Collateral Agent so long as: (i) no Default or Event of Default exists at the time such notes are issued or would occur as a result thereof; (ii) the net cash proceeds of such notes are used first to repay the obligations of Borrower under the Term Loan Agreement, 2015 and any remaining proceeds are remitted to Administrative and Collateral Agent for application to the Obligations as set forth in Schedule 9.01 Section 6.4(a) hereof; (iii) prior to its incurrence, Administrative and Collateral Agent shall have received such information with regard to such notes as it may reasonably request, including, without limitation, true, correct and complete copies of all agreements, documents and instruments evidencing or otherwise related to such Indebtedness; (iv) Borrower does not, directly or indirectly, (A) without the Non-Convertible Credit Facility Agreement; provided thatprior written consent of Administrative and Collateral Agent, amend, modify, alter or change the terms of such notes or any agreement, document or instrument related thereto in a manner materially more adverse to the Lenders or so as to make the terms thereof materially more burdensome or restrictive to Borrower, in each case, than the terms thereof in effect prior to such amendment, modification, alteration or change, or (B) redeem, retire, defease, purchase or otherwise acquire such notes (except pursuant to regularly scheduled payments permitted under the terms of this Agreement and any subordination agreement related to such notes), or set aside or otherwise deposit or invest any sums for such purpose, and (v) Borrower shall furnish to Administrative and Collateral Agent all material notices or demands in connection with such Indebtedness either received by Borrower or on its behalf promptly after the receipt thereof, or sent by Borrower or on its behalf concurrently with the sending thereof, as the case may be;
(g) Intentionally Omitted;
(h) the Indebtedness set forth on Schedule 9.9 hereto; provided, that, (i) Borrowers and Guarantors may only make regularly scheduled payments of principal and interest in respect of such Indebtedness in accordance with the terms of the agreement or instrument evidencing or giving rise to such Indebtedness as in effect on the date hereof, (ii) Borrowers and Guarantors shall not, directly or indirectly, (A) without the prior written consent of Administrative and Collateral Agent, amend, modify, alter or change the terms of such Indebtedness in a manner materially more adverse to the Lenders or so as to make the terms thereof materially more burdensome or restrictive to Borrowers and Guarantors, in each case, than the terms thereof in effect prior to such amendment, modification, alteration or change, or (B) redeem, retire, defease, purchase or otherwise acquire such Indebtedness, or set aside or otherwise deposit or invest any sums for such purpose, (iii) Borrowers and Guarantors shall furnish to Administrative and Collateral Agent all notices or demands in connection with such Indebtedness either received by any Borrower, any Guarantor or on any of their behalf, promptly after the receipt thereof, or sent by any Borrower, any Guarantor or on any of their behalf, concurrently with the sending thereof, as the case may be and (iv) with respect to Indebtedness arising in connection with the letters of credit listed on Schedule 9.9 hereto: (A) in no event may such Indebtedness be secured or cash-collateralized and (B) such Indebtedness may not be renewed, extended, replaced or otherwise continue to be outstanding beyond the maturity dates of such letters of credit set forth on Schedule 9.9 hereto;
(i) so long as the aggregate amount thereof does not exceed $5,000,000 at any time, Indebtedness with respect to surety bonds, appeal bonds or like instruments acquired in the ordinary course of business or in connection with the enforcement of rights or claims of any Borrower, any Guarantor or any of their respective Subsidiaries or in connection with judgments that do not result in a Default or an Event of Default;
(j) to the extent subject to the intercompany subordination agreement described in Section 4.1(i) and otherwise permitted under Section 9.10 hereof (i) Indebtedness of any Borrower or any Guarantor or any of their respective Subsidiaries to any other Subsidiary or any Borrower or any Guarantor, or (ii) Indebtedness of BlueLinx to Parent;
(k) unsecured guaranties by any Borrower of Indebtedness or other obligations of its Subsidiaries that are permitted to be incurred hereunder;
(l) Indebtedness of a Subsidiary of any Borrower acquired pursuant to the terms of Section 9.10 hereof, or assumed by any Borrower in connection with the acquisition of an asset pursuant to the terms of Section 9.10 hereof, so long as such Indebtedness was not incurred in connection with, or in contemplation of, such acquisition or such investment and otherwise does not violate any provision of this Agreement;
(m) Indebtedness owing in connection with the liens permitted under Sections 9.8(b), 9.8(c), 9.8(k) or 9.8(m);
(n) up to $5,000,000, in the aggregate at any one time outstanding, of Indebtedness representing the unpaid balance of the purchase price of any property or services that constitutes an account payable to a trade creditor (whether or not an Affiliate) which (i) was created, incurred, assumed or guaranteed by a Borrower or a Guarantor in the ordinary course of business of such Borrower or such Guarantor in connection with obtaining goods, materials or services, (ii) is overdue by more than ninety (90) days and (iii) is not being contested by such Borrower or such Guarantor in good faith;
(o) unsecured Indebtedness of any Borrower or any Guarantor to any third person (other than another Borrower or Guarantor) arising after the date hereof in an amount at any one time outstanding not to exceed Twenty-Five Million Dollars ($25,000,000) in the aggregate for all such Indebtedness to all such third persons; provided, that, (i) Borrowers and Guarantors may only make regularly scheduled payments of principal and interest in respect of such Indebtedness in accordance with the terms of the agreement or instrument evidencing or giving rise to such Indebtedness, (ii) Each Borrower and each Guarantor shall not, directly or indirectly, (A) without the prior written consent of Administrative and Collateral Agent, amend, modify, alter or change the terms of such Indebtedness in a manner materially more adverse to the Lenders or so as to make the terms thereof materially more burdensome or restrictive to such Borrower or such Guarantor, in each case, than the terms thereof in effect prior to such amendment, modification, alteration or change, or (B) redeem, retire, defease, purchase or otherwise acquire such Indebtedness, or set aside or otherwise deposit or invest any sums for such purpose, and (iii) Borrowers and Guarantors shall furnish to Administrative and Collateral Agent all material notices or demands in connection with such Indebtedness either received by any Borrower, any Guarantor or on any of their behalf, promptly after the receipt thereof, or sent by any Borrower, any Guarantor or on any of their behalf, concurrently with the sending thereof, as the case may be;
(p) unsecured Indebtedness of any Borrower to sellers incurred as part of the purchase price in connection with any Permitted Acquisitions not to exceed Twenty-Five Million Dollars ($25,000,000) in the aggregate among all Borrowers at any one time outstanding, so long as such Indebtedness is subordinated to the Obligations on under terms and conditions reasonably satisfactory to the Required Holders;
(v) accounts payable to trade creditors for goods Administrative and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its AffiliatesCollateral Agent; and
(xivq) any Indebtedness approved in advance in writing of BlueLinx consisting of a Mortgage Proceeds Investment; provided, that, BlueLinx shall not make any repayments with respect thereto unless: (i) Modified Adjusted Excess Availability after giving effect to any such repayment is equal to or greater than $120,000,000; (b) both before and after giving effect to any such repayment, Borrowers’ Fixed Charge Coverage Ratio for the immediately trailing twelve month period, on a consolidated basis, is equal to or greater than 1.1:1.0 (for purposes of this Section 9.9(q) only, Fixed Charge Coverage Ratio shall be calculated by excluding the amount of any such repayment and by adjusting the interest component of the calculation to include any interest payments which would have been made by the Holders Borrowers had the amount of Mortgage Proceeds Investment which is being repaid never been loaned to the BlueLinx); (c) Administrative Borrower shall have provided Administrative and Collateral Agent with at least ten (10) Business Days prior written notice of any such repayment; (d) no Default or Event of Default shall have occurred and be continuing or would result from such repayment; and (e) prior to the making of any such repayment, Administrative and Collateral Agent shall have received Borrowers’ unaudited internally prepared financial statements for the month immediately preceding the date of such prepayment, accompanied by a majority in aggregate principal amount certificate of Administrative Borrower’s chief financial officer as to Borrowers’ compliance with the outstanding Securitiesterms of this Section 9.9(q) together with such supporting documentation therefor as Administrative and Collateral Agent may reasonably request.
Appears in 2 contracts
Samples: Loan and Security Agreement (BlueLinx Holdings Inc.), Loan and Security Agreement (BlueLinx Holdings Inc.)
Indebtedness. Such Obligor Lufkin will not, and will not permit any of its Subsidiaries consolidated Subsidiary to, create, incur, assume or permit to exist any Indebtedness, whether directly or indirectly, except:
(ia) the ObligationsIndebtedness created hereunder;
(ii) Indebtedness owing under the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereof;
(iii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(ivb) Indebtedness existing on August 28, 2015 the date hereof and set forth in Schedule 9.01 6.01 and extensions, renewals and replacements of the Non-Convertible Credit Facility Agreement; provided that, in each case, any such Indebtedness is that neither increase the outstanding principal amount thereof nor shorten the maturity of any principal of such Indebtedness and the terms and provisions of which are not materially more onerous to Lufkin or such consolidated Subsidiary than the terms and conditions of such Indebtedness on the date of this Agreement;
(c) Indebtedness of Lufkin to any consolidated Subsidiary and of any consolidated Subsidiary to Lufkin or any other consolidated Subsidiary; provided, that any such Indebtedness of a Borrower or a Guarantor to a Person not a Borrower or a Guarantor shall be subordinated to the Obligations on terms satisfactory to the Required Holders;Obligations.
(v) 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 such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viiid) Guarantees by any Obligor Lufkin of Indebtedness of any consolidated Subsidiary and by any consolidated Subsidiary of Indebtedness of Lufkin or any other Obligor consolidated Subsidiary;
(e) Indebtedness of Lufkin or any consolidated Subsidiary as an account party in respect of trade letters of credit;
(f) Indebtedness of Lufkin or any consolidated Subsidiary in respect of equipment leases on office equipment and other similar Property in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) 2,000,000 at any timetime outstanding;
(ixg) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate principal amount not to exceed $50,000,000 at any one time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securities.outstanding;
Appears in 2 contracts
Samples: Credit Agreement (Lufkin Industries Inc), Credit Agreement (Lufkin Industries Inc)
Indebtedness. Such Obligor will not(a) The Borrower shall not create, and will not incur or suffer to exist, or permit any of its Subsidiaries to, to create, incurincur or suffer to exist, assume or permit to exist any Indebtedness, whether or incur, assume, endorse, be or become liable for, or guarantee, directly or indirectly, or permit or suffer to exist, any Contingent Obligation, except:
(i) Indebtedness and Contingent Obligations in respect of the ObligationsObligations or evidenced by a Loan Document;
(ii) Indebtedness owing under current liabilities in respect of taxes, assessments and governmental charges or levies incurred, or claims for labor, materials, inventory, services, supplies and rentals incurred, or for goods or services purchased, in the Non-Convertible Credit Facility Loan Documents ordinary course of business consistent with the past practice of the Borrower and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereofits Subsidiaries;
(iii) Indebtedness owing under of the Convertible Credit Facility Loan Documents Borrower consisting of fees and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 expenses referred to in Section 4.01(j) and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement4.02(d);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Borrower or any of its Subsidiaries under Capital Financing Indebtedness in respect of each Hotel Facility Agreementin an aggregate amount for such Hotel Facility not exceeding $200,000.00 at any one time outstanding; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;and
(v) accounts payable to trade creditors for goods and services and current operating liabilities (not the result Indebtedness of the borrowing of money) incurred in the ordinary course of such Obligor’s Borrower or any of its Subsidiaries’ business Subsidiaries comprising pre-existing Indebtedness secured by Real Estate and any personal property located thereon, which the Borrower or any of its Subsidiaries assumes in accordance connection with customary terms and paid within the specified timeacquisition of such Real Estate, unless contested in good faith by appropriate proceedings and reserved for in accordance with GAAP;an aggregate amount not exceeding $25,000,000.
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor the Borrower or any of its Subsidiaries arising pursuant to the Existing Facility or the Other Supplemental Facility.
(vii) The mortgage loan made November 25, 1996 in the aggregate principal amount of $125,000,000 by Column Financial, Inc., as originator, to HPTRI Corporation and HPTWN Corporation.
(viii) Indebtedness between the Borrower and any of its wholly-owned Subsidiaries.
(b) The Borrower shall not cancel, or permit any of its Subsidiaries to cancel, any claim or Indebtedness owed to it except for adequate consideration and in the ordinary course of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securities.
Appears in 2 contracts
Samples: Second Supplemental Credit Agreement (Hospitality Properties Trust), Credit Agreement (Hospitality Properties Trust)
Indebtedness. Such Obligor will Each of the Loan Parties shall not, and will shall not permit any of its Subsidiaries to, at any time create, incur, incur or assume or permit to exist any Indebtedness, whether directly or indirectly, except:
(i) the Obligations;
(ii) : Indebtedness owing under the Non-Convertible Credit Facility Loan Documents Documents; Indebtedness evidenced by the Senior Unsecured Notes, including any increase in the amount thereof, provided that prior to and Permitted Refinancings thereofafter giving effect to such increase, the Borrowers have Unused Availability of not less than $25,000,000 at the time such Indebtedness is incurred; Indebtedness as set forth on Schedule 7.2.1; provided there is not an increase in the amount thereof or other significant change in the terms thereof Capitalized and operating leases as and to the extent permitted under Section 7.2.18 [Capital Expenditures and Leases]; Indebtedness secured by Purchase Money Security Interests and/or other assets which are not Collateral, provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereof;
(iii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) 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 such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or 20,000,000 at any one time outstanding; Indebtedness of a Loan Party to another Loan Party which is subordinated in accordance with the Equivalent Amount provisions of Section 7.1.12 [Subordination of Intercompany Loans], provided that the aggregate Indebtedness of the Borrowers from their Subsidiaries other than the Borrowers may not exceed $10,000,000 in other currencies) the aggregate at any time;
; Indebtedness under Hedging Contracts, provided that (x1) such Hedging Contracts with respect to hedging of interest rates are related to payment obligations on Indebtedness permitted under this Agreement, (2) the notional principal amount of any Obligor or any such Hedging Contracts with respect to hedging of its Subsidiaries interest rates does not exceed the principal amount of such Indebtedness to which such Hedging Contracts relate, and (i3) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, the liabilities under such Hedging Contracts which do not represent an actual obligation and for which an offsetting derivative contract has been recorded in connection the financial statements are recorded in accordance with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with SFAS 133; Indebtedness in respect to of bid, performance guaranties and or surety bonds incurred issued for the account of any of the Loan Parties in the ordinary course of business business; and of a type and amount consistent with past practices Other unsecured Indebtedness provided that after giving effect to such Indebtedness the Borrowers’ Adjusted Fixed Charge Coverage Ratio computed as of the Obligors and their Subsidiaries;
end of the fiscal quarter preceding the fiscal quarter during which such Indebtedness is incurred (xii“Referenced Quarter”) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of would be at least 1.5 to 1.0, determined on a majority in aggregate principal amount of the outstanding Securities written notice prior to pro forma basis as if the incurrence of any such additional Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by and the Holders of at least a majority in aggregate principal amount application of the outstanding Securitiesnet proceeds therefrom had occurred at the beginning of the four quarter period ending with the Referenced Quarter.
Appears in 2 contracts
Samples: Credit Agreement (Super Test Petroleum Inc), Credit Agreement (Kwik Fil Inc)
Indebtedness. Such Obligor will not, and The Credit Parties will not permit any of its Subsidiaries toConsolidated Party to contract, create, incur, assume or permit to exist any Indebtedness, whether directly or indirectly, except:
(a) Indebtedness arising under this Credit Agreement and the other Credit Documents;
(b) Indebtedness of the Borrower and its Subsidiaries set forth in SCHEDULE 8.1;
(c) purchase money Indebtedness (including Capital Leases) or Synthetic Leases hereafter incurred by the Borrower or any of its Subsidiaries to finance the purchase of fixed assets PROVIDED that (i) the Obligations;
(ii) Indebtedness owing under the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount 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 (including any such Indebtedness referred to in subsection (b) above); (ii) such Indebtedness when incurred shall not exceed the sum purchase price of $35,000,000 the asset(s) financed; and the (iii) no such Indebtedness shall be refinanced for a principal amount in excess of interest thereon compounded and added to the principal thereofbalance outstanding thereon at the time of such refinancing;
(iiid) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 obligations of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) 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 such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor Borrower or any of its Subsidiaries in the ordinary course respect of businessHedging Agreements entered into in order to manage existing or anticipated interest rate or exchange rate risks and not for speculative purposes;
(viie) other unsecured Indebtedness of the Borrower and its Subsidiaries in an amount not to exceed $3,000,000 in the aggregate at any Obligor to any other Obligorone time; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;and
(viiif) Guarantees by any Obligor of Indebtedness (the "REPLACEMENT INDEBTEDNESS") that refinances or replaces the Indebtedness of Xxxxxx Realty Services, Inc. set forth on SCHEDULE 8.1 (the "XXXXXX INDEBTEDNESS") and any other Obligor Guaranty Obligations of the Borrower in an aggregate principal amount not exceeding $1,150,000 (or connection with the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financingReplacement Indebtedness; provided that provided, however, (i) if securedthe Replacement Indebtedness must be on terms no less favorable to Xxxxxx Realty Services, Inc. as the collateral therefor consists solely terms of the assets being financedXxxxxx Indebtedness, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such the Replacement Indebtedness does shall not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior Xxxxxx Indebtedness and (iii) the collateral securing the Replacement Indebtedness shall be the same collateral that secures the Xxxxxx Indebtedness other than (A) any such collateral that is released, (B) any additional real property collateral identified on SCHEDULE A to the incurrence Third Amendment and (C) collateral consisting of any such Indebtedness an interest bearing account in an amount equal to approximately one year's principal and interest payments under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding SecuritiesReplacement Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement (Resortquest International Inc), Credit Agreement (Resortquest International Inc)
Indebtedness. Such Obligor will not, and will not permit any of its Subsidiaries to, createCreate, incur, assume or permit suffer to exist any Indebtedness, whether directly or indirectlyexcept the following, exceptwithout duplication:
(ia) Indebtedness of the ObligationsBorrower and other Loan Parties under the Loan Documents;
(iib) Indebtedness owing under outstanding on the Non-Convertible Credit Facility Loan Documents Closing Date and Permitted Refinancings thereoflisted on Schedule 7.03(b):
(c) additional Capital Leases incurred after the Closing Date and purchase money Indebtedness in an aggregate amount not to exceed $750,000 in the aggregate at any time outstanding, and any Refinancing Indebtedness in respect of such Indebtedness; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured only by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (ii) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate outstanding consideration paid with respect to such asset;
(d) other unsecured Indebtedness in an aggregate principal amount of all such Indebtedness shall not to exceed $250,000 at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereofoutstanding;
(iiie) Indebtedness owing under the Convertible Credit Facility Loan Documents in respect of performance of bids, trade contracts, governmental contracts and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount leases (other than Indebtedness for borrowed money), statutory obligations, surety, stay, indemnity, customs and appeal bonds, performance bonds and other obligations of all such Indebtedness shall not exceed at any time the sum of $69,095,709 a like nature (including those to secure health, safety and the amount of interest thereon compounded and added to the principal thereofenvironmental obligations), and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided thatand, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) accounts payable to trade creditors for goods and services and current operating liabilities (not the result letters of the borrowing of money) credit in respect thereof, incurred in the ordinary course of such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(viif) non-recourse Indebtedness incurred by the Loan Parties or any of any Obligor their Subsidiaries to any other Obligor; provided that, in each case, finance the payment of insurance premiums of such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required HoldersPerson;
(viiig) Guarantees by Indebtedness owed to any Obligor Person providing worker’s compensation, unemployment insurance and other social security legislation, health, disability or other employee benefits or property, casualty or liability insurance to the Loan Parties or any of Indebtedness their Subsidiaries incurred in connection with such Person providing such benefits or insurance pursuant to customary reimbursement or indemnification obligations to such Person;
(h) to the extent constituting Indebtedness, each of any other Obligor the Investments permitted pursuant to Section 7.02;
(i) reimbursement obligations owed to banks and financial institutions with respect to credit card services in an aggregate principal amount at any one time not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time400,000;
(ixj) normal course Indebtedness consisting of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds accounts payable incurred in the ordinary course of business and of a type and amount consistent with past practices of due for more than 120 days after its stated due date (except for accounts payable contested in good faith) which do not in the Obligors and their Subsidiariesaggregate exceed $750,000;
(xiik) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described the Borrower and the Loan Parties under the Deed Poll Constituting Loan Notes issued in this Section 9(a), connection with the CVR Instrument made by the Parent in an aggregate principal amount not to exceed $85,000,000 at any time outstanding;
(1) finance leases with respect to AP101 and AP103 equipment in an amount not to exceed $5,750,0005,000,000 in the aggregate at any time outstanding; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing shall be secured only by the Holders of at least a majority in aggregate principal amount of the outstanding Securities.equipment financed thereunder;
Appears in 2 contracts
Samples: Credit Agreement (Amryt Pharma PLC), Credit Agreement (Amryt Pharma PLC)
Indebtedness. Such Obligor will notCreate, and will not permit any of its Subsidiaries to, createissue, incur, assume or permit to exist become liable in respect of any Indebtedness, whether directly or indirectly, except:
(ia) the ObligationsIndebtedness of any Group Member pursuant to any Loan Document;
(b) Indebtedness of any Group Member pursuant to the Revolving Facility Agreement or any other Revolving Facility Document and Permitted Refinancing Indebtedness in respect of any thereof;
(c) Indebtedness (i) among Group Members, (ii) Indebtedness owing under the Non-Convertible Credit Facility Loan Documents among Foreign Subsidiaries or (iii) among Group Members and Permitted Refinancings thereoftheir Subsidiaries; provided that the sum of Indebtedness owed by Subsidiaries that are not Guarantors to the Borrower or any Guarantor and Indebtedness owed by Unrestricted Subsidiaries to the Borrower or any Restricted Subsidiary shall not exceed an aggregate outstanding principal amount of all such Indebtedness shall not exceed $5,000,000 at any one time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereof;
(iii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereofoutstanding; provided that the aggregate outstanding principal amount of all any such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is Borrower or any Guarantor shall be subordinated to the Obligations on terms reasonably satisfactory to the Required HoldersAdministrative Agent;
(vd) accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) Guarantee Obligations incurred in the ordinary course of such Obligor’s or any of its Subsidiaries’ business in accordance with customary terms and paid within by (i) the specified time, unless contested in good faith by appropriate proceedings and reserved for in accordance with GAAP;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor Borrower or any of its Subsidiaries in the ordinary course of businessobligations of any Guarantor and (ii) any Restricted Subsidiary that is not a Guarantor of obligations of any other Restricted Subsidiary;
(viie) Indebtedness of outstanding on the date hereof and listed on Schedule 6.1(e) and any Obligor to any other Obligor; provided that, Permitted Refinancing Indebtedness in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holdersrespect thereof;
(viiif) Guarantees by any Obligor of Indebtedness of any other Obligor with respect to Capital Lease Obligations (including Sale and Leaseback transactions) in an aggregate principal amount not exceeding to exceed $1,150,000 (or the Equivalent Amount in other currencies) 10,000,000 at any timeone time outstanding;
(ixg) normal course of business equipment financingPurchase Money Indebtedness in an aggregate principal amount not to exceed $10,000,000 at any one time outstanding; provided that any such Indebtedness (i) if securedshall be secured only by the asset acquired in connection with the incurrence of such Indebtedness, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) shall constitute not less than 100% of the aggregate outstanding principal amount consideration paid with respect to such asset and (iii) shall be incurred within 180 days after the date of acquisition of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any timeasset;
(xh) obligations of any Obligor Indebtedness incurred by the Borrower or any of its the Restricted Subsidiaries (i) arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition)obligations, or (ii) under guaranties from guarantees or letters of credit, surety bonds or performance bonds securing the performance of the Borrower or any Obligor such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of the Borrower or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xii) contingent Indebtedness which may be deemed to exist pursuant to any guarantees, performance, surety, statutory, appeal or similar obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiariesbusiness;
(xiij) obligations Indebtedness in respect of netting services, overdraft protections and other similar otherwise in connection with deposit accounts, securities accounts or cash management products for deposit accountsservice;
(xiiik) unsecured Guarantee Obligations incurred in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and the Restricted Subsidiaries;
(l) Indebtedness of any Obligor not otherwise described Foreign Subsidiary incurred in this Section 9(a)respect of bank guarantees, letters or credit or similar instruments to support local, legal, regulatory, solvency or consumer requirements or tax disputes;
(m) (i) Indebtedness in respect of (i) Flooring Arrangements in an aggregate amount not to exceed $20,000,000 at any time $5,750,000outstanding and (ii) Showcase Arrangements;
(n) Indebtedness incurred by Foreign Subsidiaries under working capital facilities in an aggregate principal amount not to exceed Euro 10,000,000 at any time outstanding;
(o) Indebtedness assumed in connection with a Permitted Acquisition so long as such Indebtedness is in existence at the time of the consummation of the Permitted Acquisition and is not created in anticipation thereof and Permitted Refinancing Indebtedness in respect thereof;
(p) additional unsecured Indebtedness of the Borrower; provided that Issuer (i) such Indebtedness shall give not mature or require scheduled amortization or other scheduled payments of principal prior to the Holders date that is six months after the Maturity Date, (ii) the Borrower shall not be required to comply with any financial maintenance covenant with respect to such Indebtedness, (iii) both immediately prior to and after giving effect thereto, no Default or Event of at least Default shall exist or result therefrom, (iv) the Consolidated Senior Secured Debt Ratio (determined on a majority pro forma basis) shall not exceed the Required Consolidated Senior Secured Debt Ratio and (v) such Indebtedness is incurred by the Borrower or any Guarantor and is not guaranteed by any Subsidiary other than the Guarantors, and, in each case, Permitted Refinancing Indebtedness in respect thereof;
(q) additional Indebtedness of the Borrower or any of the Restricted Subsidiaries in an aggregate principal amount of (for the outstanding Securities written notice prior Borrower and all Restricted Subsidiaries) not to the incurrence of exceed $25,000,000 at any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliatesone time outstanding; and
(xivr) Indebtedness approved of the Borrower or any of the Restricted Subsidiaries incurred in advance in writing connection with the financing of insurance premiums that is secured solely by the Holders of insurance financed not to exceed $3,000,000 in the aggregate at least a majority in aggregate principal amount of the outstanding Securitiesany time outstanding.
Appears in 2 contracts
Samples: Term Facility Credit Agreement (Fender Musical Instruments Corp), Term Facility Credit Agreement (Fender Musical Instruments Corp)
Indebtedness. Such Obligor will The Borrowers shall not, and will not nor shall the Company permit any of its Subsidiaries Subsidiary to, create, incur, assume or permit suffer to exist any Indebtedness, whether directly or indirectly, except:
(ia) Indebtedness under the ObligationsLoan Documents;
(iib) Non-Priority Indebtedness of the Company;
(c) Non-Priority Indebtedness of Subsidiaries of the Company that are Subsidiary Guarantors;
(d) Indebtedness owing under outstanding on the Non-Convertible Credit Facility Loan Documents date hereof and Permitted Refinancings listed on Schedule 7.02 and any refinancings, 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; provided further that the direct or contingent obligor with respect to such Indebtedness is not changed.
(e) Indebtedness of the Company or any Subsidiary to the Company or any Subsidiary;
(f) guarantees by the Company or any Subsidiary in respect of Indebtedness otherwise permitted hereunder of any Subsidiary, other than guarantees by a Domestic Subsidiary in respect of Indebtedness of a Foreign Subsidiary;
(g) Indebtedness incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including under Capitalized Leases and Synthetic Leases, and any Indebtedness assumed in connection with the acquisition of any assets or secured by a Lien on such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof, provided that the aggregate outstanding principal amount of all such Indebtedness permitted by this clause (g) shall not exceed at any one time the sum of exceed $35,000,000 and 50,000,000 (but, if recourse to such Person is limited to such property, then the amount of interest thereon compounded and added such Indebtedness of such Person shall be deemed to be limited to the principal thereof;
lesser of (iiii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereofsecured Indebtedness, and Indebtedness under (ii) the Fee Letter (as defined in fair market value of the Convertible Credit Facility Agreementproperty subject to such Lien);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) 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 such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(viih) Indebtedness of any Obligor Person that becomes a Subsidiary or that is merged with or into the Company or a Subsidiary after the date hereof or related to any other Obligorassets or properties described in Section 7.01(k); provided that, in each case, that such Indebtedness exists (i) at the time such Person becomes a Subsidiary and is unsecured not created in contemplation of or in connection with such Person becoming a Subsidiary, or (ii) at the time the property or asset is acquired, as applicable, and subordinated to the Obligations on terms satisfactory to the Required Holdersis not created in contemplation of or in connection with such acquisition;
(viiii) Guarantees by Indebtedness in connection with any Obligor Permitted Receivables Securitization Facility and Indebtedness created in connection with Recourse Obligations for credit enhancement or liquidity purposes, pursuant to any agreement pursuant to which the Company and certain of its Subsidiaries agree to sell, assign, pledge and transfer to a credit insurance provider or other similar entities certain Recourse Obligations; and
(j) Indebtedness (other than guarantees of Indebtedness of the Company) of Foreign Subsidiaries other than the Designated Borrower;
(k) Indebtedness of any Subsidiary in respect of media production-level financings, to the extent such financings are non-recourse to the Company or any Subsidiary Guarantor; and
(l) other Obligor Indebtedness of the Company or its Subsidiaries in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount excess of 15% of Consolidated Net Worth over the aggregate outstanding amount of obligations secured by Liens incurred in other currenciesaccordance with Section 7.01(t) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securitiesoutstanding.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Hasbro, Inc.), Revolving Credit Agreement (Hasbro, Inc.)
Indebtedness. Such Obligor will The Parent Borrower shall not, and will shall not permit any of its Restricted Subsidiaries to, create, incur, assume Incur or permit suffer to exist any Indebtedness, whether directly or indirectly, except:
(a) existing Indebtedness outstanding on the Funding Date and described on Schedule 7.3;
(b) Indebtedness under the Credit Documents;
(c) Indebtedness under:
(i) the Obligations;Term Loan Credit Documents and any Guaranties of such Indebtedness by a Guarantor; and
(ii) the Senior Notes and any Guaranties of such Indebtedness owing under the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereofby a Guarantor; provided that the aggregate outstanding principal amount of all such Indebtedness Term Loans and Senior Notes shall not exceed an aggregate amount of $1,730,000,000 outstanding at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereofone time;
(iiid) Indebtedness owing under intercompany loans and advances made by the Convertible Credit Facility Loan Documents and Permitted Refinancings thereofParent Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Parent Borrower or its Restricted Subsidiaries; provided that the aggregate outstanding principal amount of all any such Indebtedness (other than the US Holdco Intercompany Note) owed by any Credit Party shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is be subordinated to the Obligations on terms reasonably satisfactory to the Required HoldersAdministrative Agent;
(ve) accounts payable to trade creditors for goods Indebtedness under any Rate Management and services and current operating liabilities (not the result of the borrowing of money) incurred Currency Protection Transactions entered into in the ordinary course of such Obligor’s or any business and not for speculative purposes, and Indebtedness in respect of its 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 GAAPSpecified Cash Management Obligations;
(vif) Indebtedness consisting (i) under unsecured lines of guarantees resulting credit for overdrafts or for working capital purposes in foreign countries with financial institutions, or (ii) arising from endorsement the honoring by a bank or other Person of negotiable instruments a check, draft or similar instrument inadvertently drawing against insufficient funds, all such Indebtedness not to exceed the Dollar Equivalent of $100,000,000 in the aggregate at any time outstanding, provided that amounts under overdraft lines of credit or outstanding as a result of drawings against insufficient funds shall be outstanding for collection by any Obligor one (1) Business Day before being included in such aggregate amount;
(g) Indebtedness of a Person existing at the time such Person becomes a Restricted Subsidiary of the Parent Borrower or is merged with or into the Parent Borrower or any Restricted Subsidiary of its Subsidiaries the Parent Borrower and not Incurred in contemplation of such transaction;
(h) Indebtedness (i) under Performance Guaranties and Performance Letters of Credit and (ii) with respect to letters of credit issued in the ordinary course of business;
(viii) Capitalized Lease Obligations and Indebtedness secured by Liens permitted under Section 7.2(g); provided that the aggregate principal amount of all Capitalized Lease Obligations and Indebtedness under this Section 7.3(i) shall not exceed at any one time outstanding $250,000,000;
(j) Guaranties with respect to Indebtedness pursuant to this Section 7.3 (other than clause (c) unless otherwise permitted pursuant to such clause);
(k) Indebtedness owing to any insurance company in connection with the financing of any insurance premiums permitted by such insurance company;
(l) Indebtedness consisting of obligations under non-competition arrangements, adjustments of purchase price, earn-outs or similar arrangements;
(m) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor Restricted Subsidiary in an aggregate principal amount at the time of Incurrence thereof that does not exceeding $1,150,000 (or exceed, when taken together with all such other Indebtedness outstanding pursuant to this Section 7.3(m), the Equivalent Amount in other currencies) at any timeSubsidiary Debt Basket Amount;
(ixn) normal course the issuance by any of business equipment financingthe Parent Borrower’s Restricted Subsidiaries to the Parent Borrower or to any of its Restricted Subsidiaries of shares of Preferred Stock;
(o) other Indebtedness Incurred by any Credit Party; provided that the Parent Borrower would have a Leverage Ratio, calculated on a Pro Forma Basis for such Incurrence and any concurrent repayment of Indebtedness, of not more than 3.50 to 1.00; and
(ip) if securedextensions, modifications, renewals, refinancings or replacements of Indebtedness permitted by this Section 7.3 that do not increase the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnificationthan by amounts equal to unpaid accrued interest and premium thereon plus other amounts paid, adjustment of purchase price or similar obligations and fees and expenses (including for the deferred purchase price of property acquired in a Permitted Acquisition)any bona fide amendment, waiver or (iiconsent fee) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each casereasonably Incurred, in connection with transactions permitted under Section 9(c)(vsuch extension, modification, renewal, refinancing or replacement);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securities.
Appears in 2 contracts
Samples: Senior Secured Revolving Credit Agreement (Paragon Offshore Ltd.), Senior Secured Revolving Credit Agreement (Noble Corp PLC)
Indebtedness. Such Obligor will not, and will not permit any of its Subsidiaries toIncur, create, incur, assume or permit to exist any Indebtedness, whether directly or indirectly, except:
(ia) Indebtedness under the ObligationsLoan Documents;
(iib) intercompany Indebtedness owing to the extent that the loan or advance to the applicable debtor was permitted under Section 8.04;
(c) Capital Lease Obligations and other Indebtedness incurred to finance the Non-Convertible Credit Facility Loan Documents acquisition, construction or improvement of any fixed or capital assets, including 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, and Permitted Refinancings thereofextensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (except by an amount equal to unpaid accrued interest and premium thereon at such time plus reasonable fees and expenses incurred in connection with such extensions, renewals or replacements); provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed $200,000,000 at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereofoutstanding;
(iiid) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the industrial revenue bonds in an aggregate outstanding principal amount of all such Indebtedness shall not to exceed $20,000,000 at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement)outstanding;
(ive) Receivables Program Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of an amount not exceeding $100,000,000 in the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holdersaggregate at any time outstanding;
(vf) accounts payable to trade creditors for goods Indebtedness solely in respect of surety, performance, statutory, bid, appeal, customs and services return-of-money bonds, payment (other than payment of Indebtedness) or completion performance guarantees, bankers’ acceptance, bank guarantees, letters of credit, warehouse receipts and current operating liabilities (not the result similar obligations in respect of contractual obligations of the borrowing of moneyBorrower or its Subsidiaries, provided that such obligations are (i) incurred in the ordinary course of such Obligor’s business of the Borrower and its Subsidiaries and (ii) except as expressly permitted under Section 8.02(d) or any of its Subsidiaries’ business in accordance with customary terms and paid within the specified time8.02(e), unless contested in good faith by appropriate proceedings and reserved for in accordance with GAAPunsecured;
(vig) to the extent constituting Indebtedness, obligations owed to any Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person or in respect of such statutory obligation; provided that such obligations are incurred in the ordinary course of business of the Borrower and its Subsidiaries;
(h) to the extent constituting Indebtedness, obligations representing deferred compensation to employees or directors of the Borrower or any Subsidiary incurred in the ordinary course of business of the Borrower and its Subsidiaries;
(i) Indebtedness consisting of guarantees resulting from endorsement (i) the financing of negotiable instruments for collection insurance premiums or self-insurance obligations and (ii) take-or-pay obligations contained in supply or similar agreements, in each case in the ordinary course of business of the Borrower and its Subsidiaries; provided that such obligations are incurred in connection with open accounts extended by any Obligor or any of its Subsidiaries suppliers on customary trade terms in the ordinary course of business;
(viij) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to Person that becomes a Subsidiary after the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor date hereof in an aggregate principal amount not exceeding to exceed $1,150,000 (or the Equivalent Amount in other currencies) 75,000,000 at any time;
(ix) normal course of business equipment financingone 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 (i) if securedand extensions, renewals and replacements of any such Indebtedness that do not increase the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of thereof (except by an amount equal to unpaid accrued interest and premium thereon at such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, time plus reasonable fees and expenses incurred in connection with transactions permitted under Section 9(c)(vsuch extensions, renewals or replacements));
(xik) contingent obligations with respect to performance guaranties and surety bonds incurred in other Indebtedness, so long as the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of Priority Debt does not exceed 7.5% of Consolidated Tangible Assets (determined as of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliatesmost recently ended fiscal quarter for which financial statements are available); and
(xivl) Guarantees with respect to Indebtedness approved permitted under this Section 8.01; provided that in advance in writing the case of any Guarantee provided by the Holders Borrower or any wholly-owned Subsidiary in respect of at least Indebtedness of a majority in aggregate principal amount of the outstanding Securitiesnon-wholly-owned Subsidiary, such Guarantee is also permitted under Section 8.04(o) or Section 8.04(p).
Appears in 2 contracts
Samples: Credit Agreement (Flowserve Corp), Credit Agreement (Flowserve Corp)
Indebtedness. Such Obligor will not, and will not permit any of its Subsidiaries to, create, incur, assume or permit to exist any Indebtedness, whether directly or indirectly, except:
(ia) the Obligations;
(iib) Indebtedness owing under the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereof;
(iii) Indebtedness owing under the Convertible Credit Facility Class B Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility AgreementClass B Loan Documents);
(ivc) Indebtedness owing under the Second Lien Note Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $130,000,000 and the amount of interest thereon compounded and added to the principal thereof; provided further that any such replacement Indebtedness shall be subject to an intercreditor agreement in form and substance satisfactory to the Lenders and shall mature after the Stated Maturity Date;
(d) Indebtedness existing on August 28, 2015 the date hereof and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement9.01; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required HoldersMajority Lenders;
(ve) 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 such Obligor’s or any of its 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;
(vif) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(viig) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viiih) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 1,000,000 (or the Equivalent Amount in other currencies) at any time;
(ixi) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 2,000,000 (or the Equivalent Amount in other currencies) at any time;
(xj) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v9.03(e);
(xik) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xiil) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiiim) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a)9.01, in an aggregate amount not to exceed at any time $5,750,0005,000,000; provided that Issuer Borrower shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities Lenders written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii9.01(m) owing to any director or executive officer of Issuer Borrower or any of its Affiliates; and
(xivn) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding SecuritiesMajority Lenders.
Appears in 2 contracts
Samples: Credit Agreement (Kadmon Holdings, LLC), Credit Agreement (Kadmon Holdings, LLC)
Indebtedness. Such Obligor Holdings and the Borrower will not, and will not permit any of its their respective Subsidiaries to, create, incur, assume or permit suffer to exist any Indebtedness, whether directly or indirectly, except:
(a) (i) Indebtedness created pursuant to the ObligationsLoan Documents and the Escrow Agreements and (ii) (x) Indebtedness incurred pursuant to the NPA Financing in an aggregate principal amount not to exceed $100,000,000, plus capitalized PIK Interest (as defined in the Note Purchase Agreement), minus any principal payments or prepayments made in cash in respect of the NPA Notes and (y) Permitted Refinancings thereof; provided, that no Make-Whole Amount (as defined in the Note Purchase Agreement) paid in respect of the NPA Notes may be capitalized as part of a Permitted Refinancing and any such Make-Whole Amount payment shall be subordinated to the Obligations to the same extent as provided in the Intercreditor Agreement;
(iib) Indebtedness owing under of the Non-Convertible Credit Facility Loan Documents Borrower and its Subsidiaries existing on the Closing Date and set forth on Schedule 7.1 and Permitted Refinancings thereof;
(c) (i) Indebtedness of the Borrower or any of its Subsidiaries incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations, and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof (provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvements), and extensions, renewals or replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (immediately prior to giving effect to such extension, renewal or replacement) or shorten the maturity or the weighted average life thereof; provided that the aggregate outstanding principal amount of all such Indebtedness does not exceed $5,000,000 at any time outstanding (provided, however, that the aggregate principal amount of such Indebtedness incurred by Insurance Subsidiaries and Subsidiaries of an Insurance Subsidiary shall not exceed $2,500,000 at any time the sum of $35,000,000 outstanding) and the amount of interest thereon compounded and added to the principal (ii) Permitted Refinancings thereof;
(iiid) Indebtedness of the Borrower owing under to Holdings or any Subsidiary and of any Subsidiary owing to Holdings, the Convertible Credit Facility Loan Documents and Permitted Refinancings thereofBorrower or any other Subsidiary; provided that the aggregate outstanding principal amount of all any such Indebtedness that is owed by or to a Subsidiary that is not a Subsidiary Loan Party shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added only be permitted to the principal thereof, and Indebtedness under the Fee Letter (as defined be incurred in the Convertible Credit Facility Agreement)accordance with Section 7.4;
(ive) Guarantees by Holdings, the Borrower or any Subsidiary of Indebtedness existing on August 28of Holdings, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided thatBorrower or any other Subsidiary, in each case, in the ordinary course of business; provided that Guarantees by any Loan Party of Indebtedness of any Subsidiary that is not a Subsidiary Loan Party shall only be permitted to be incurred in accordance with Section 7.4;
(f) (A) Indebtedness of any Person which becomes a Subsidiary (excluding each Insurance Subsidiary and each of Subsidiary of an Insurance Subsidiary) after the date of this Agreement; provided that (i) such Indebtedness exists at the time that 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 such Indebtedness permitted hereunder shall not exceed $2,000,000 at any time outstanding and (B) Permitted Refinancings thereof;
(g) Hedging Obligations permitted by Section 7.10;
(h) Indebtedness of the Borrower or its Subsidiaries (excluding each Insurance Subsidiary and each of Subsidiary of an Insurance Subsidiary) in respect of letters of credit entered into in the ordinary course of business, in an aggregate face amount not to exceed $1,000,000 at any time outstanding;
(i) Bank Product Obligations and other Indebtedness in respect of netting services, automatic clearinghouse arrangements, overdraft protections, treasury, depository, cash management and similar arrangements in each case in connection with deposit accounts incurred in the ordinary course;
(j) to the extent constituting Indebtedness, obligations owed by any Subsidiary of Holdings to a Loan Party under the Agency Agreement and the Third Party Administrator Agreement;
(i) unsecured Indebtedness in an aggregate principal amount not to exceed $100,000,000; provided, that, such unsecured Indebtedness shall not be permitted hereunder unless such Indebtedness is subordinated to the Obligations and all of the terms, conditions and provisions (including, without limitation, the subordination and intercreditor provisions) of the Subordinated Debt Documents are consented and agreed to in writing by each of the Borrower, the Administrative Agent and the Required Lenders (it being understood and agreed that such consent on terms satisfactory the part of the Administrative Agent may be conditioned upon, among other things, amendments or other modifications to the Required Holdersterms and provisions of this Agreement and the other Loan Documents) and (ii) Permitted Refinancings thereof;
(vl) accounts payable to trade creditors Indebtedness arising in connection with endorsement of instruments for goods and services and current operating liabilities (not the result of the borrowing of money) incurred deposit in the ordinary course of such Obligor’s business or any arising from the honoring by a bank or other financial institution of its Subsidiaries’ business in accordance with customary terms and paid within the specified timea check, unless contested in good faith by appropriate proceedings and reserved for in accordance with GAAP;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor draft or any of its Subsidiaries other similar instrument drawn against insufficient funds in the ordinary course of business;
(viim) Indebtedness of any Obligor under performance bonds, surety bonds, release, appeal and similar bonds, statutory obligations or with respect to any other Obligor; provided thatworkers’ compensation claims, in each casecase incurred in the ordinary course of business, such Indebtedness is unsecured and subordinated to reimbursement obligations in respect of any of the Obligations on terms satisfactory to the Required Holdersforegoing;
(viiin) Guarantees by any Obligor Indebtedness consisting of financing of insurance premiums in the ordinary course of business;
(o) customer advances or deposits received in the ordinary course of business; and
(i) other unsecured Indebtedness of any other Obligor the Borrower or its Subsidiaries (excluding each Insurance Subsidiary and each of Subsidiary of an Insurance Subsidiary) in an aggregate principal amount not exceeding to exceed $1,150,000 (or the Equivalent Amount in other currencies) 10,000,000 at any time;
time outstanding (ixwhich may include, for the avoidance of doubt, unsecured Indebtedness consisting of contingent obligations, earnouts, seller notes and other deferred payment obligations incurred in connection with any acquisition or otherwise) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding SecuritiesRefinancings thereof.
Appears in 2 contracts
Samples: Term Loan Agreement (Root, Inc.), Term Loan Agreement (Root Stockholdings, Inc.)
Indebtedness. Such Obligor will notFrom and after the Effective Date, and will not permit any no member of its Subsidiaries tothe Restricted Group shall, directly or indirectly, create, incur, assume or permit otherwise become liable with respect to exist any Indebtedness, whether directly except (a) any Indebtedness constituting obligations under the Loan Documents, the First Lien Documents, the PM Gallery Loan Modification Documents or indirectlythe Woodland Mall Secured Loan Modification Documents, except:
(i) the Obligations;
(iib) Indebtedness owing under the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereof;
(iii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) 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 such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation or in respect of surety and appeal bonds, performance bonds and other similar obligations, (c) obligations owing from a type Loan Party to a Loan Party, (d) obligations owing from a Subsidiary that is not a Loan Party to a Subsidiary that is not a Loan Party, (e) Indebtedness arising in connection with the endorsement of instruments for deposit in the ordinary course of business, (f) non-recourse Indebtedness incurred in order to finance the payment of insurance premiums in the ordinary course of business, (g) other Indebtedness outstanding on the Effective Date and amount consistent with past practices any amendments, modifications, Refinancings or forbearances of the Obligors same, in each case that do not increase the principal amount outstanding thereunder to an amount greater than the principal amount thereunder as of the Effective Date (or, with respect to the First Lien Loans, the principal amount thereunder as of the date of such Refinancing or forbearance) plus accrued interest at the time of such Refinancing, amendment, modification or forbearance and their Subsidiaries;
costs, fees and transaction expenses paid in connection with such Refinancing, amendment, modification or forbearance to Persons that are not Affiliates of the Borrower or any Subsidiary (xiior are paid to Affiliates of the Borrower or any Subsidiary upon fair and reasonable terms which are no less favorable to such Borrower or such Subsidiary than would be obtained in a comparable arm’s length transaction with a Person that is not an Affiliate of any of the foregoing); (h) obligations under Derivatives Contracts entered into in compliance with Section 9.11, (i) Indebtedness incurred pursuant to one or more Excluded Stimulus Transactions, which does not, in the aggregate, exceed $20,000,000 at any time outstanding, (j) Guarantees by a Loan Party of Indebtedness of another Loan Party of the type permitted pursuant to Section 9.14(a), Section 9.14(b), Section 9.14(i), Section 9.14(k), Section 9.14(l), Section 9.14(m) or Section 9.14(o), (k) Indebtedness represented by Capitalized Lease Obligations or purchase money indebtedness in an aggregate principal amount which, when taken together with the principal amount of all other Indebtedness incurred pursuant to this clause and then outstanding, does not exceed $5,000,000, (l) obligations in respect connection with completion guarantees, surety bonds and performance bonds relating to liabilities, obligations or guarantees incurred in the ordinary course of business of the Borrower or its Subsidiaries, (m) obligations under any customary cash management, credit or debit card, purchase care, electronic funds transfer, cash pooling or netting servicesor setting off arrangements in the ordinary course of business of the Borrower or its Subsidiaries, overdraft protections (n) [intentionally omitted], and other similar cash management products for deposit accounts;
(xiiio) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate principal amount that does not to exceed $5,000,000 at any time $5,750,000outstanding. For purposes of determining compliance with this Section 9.14, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described above, Borrower may classify and reclassify or later divide, classify or reclassify such item of Indebtedness (or any portion thereof) and will only be required to include the amount and type of such Indebtedness in one or more of the above clauses; provided that Issuer all Indebtedness outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 9.14. The accrual of interest, the accretion of accreted value and the payment of interest in the form of additional Indebtedness shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior not be deemed to the be an incurrence of any such Indebtedness under for purposes of this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securities9.14.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (Pennsylvania Real Estate Investment Trust), Second Lien Credit Agreement (Pennsylvania Real Estate Investment Trust)
Indebtedness. Such Obligor The Borrower will not, and will not permit any of its Subsidiaries other Group Member to, incur, create, incur, assume or permit suffer to exist any Indebtedness, whether directly or indirectly, except:
(ia) the Loans or other Secured Obligations;
(iib) Indebtedness owing under of the Non-Convertible Credit Facility Loan Documents and Group Members existing on the date hereof set forth on Schedule 9.02 as well as any Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Refinancing Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal in respect thereof;
(c) purchase money Indebtedness or Capital Lease Obligations not to exceed $30,000,000 in the aggregate at any one time outstanding;
(d) unsecured Indebtedness associated with worker’s compensation claims, bonds or surety obligations required by Governmental Requirements or by third parties in the ordinary course of business in connection with the operation of, or provision for the abandonment and remediation of, the Oil and Gas Properties;
(e) (i) Indebtedness among the Borrower and its Subsidiaries which are Loan Parties, (ii) Indebtedness between the Subsidiaries of the Borrower which are not Loan Parties and (iii) Indebtedness owing under extended to the Convertible Credit Facility Borrower and its Subsidiaries which are Loan Documents and Permitted Refinancings thereofParties by any Group Members; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(ivA) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is not held, assigned, transferred, negotiated or pledged to any Person other than a Loan Party and (B) any such Indebtedness owed by either the Borrower or a Guarantor shall be subordinated to the Secured Obligations on terms satisfactory to the Required HoldersAdministrative Agent;
(vf) 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 such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement endorsements of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(viig) any guarantee of any other Indebtedness permitted to be incurred hereunder;
(h) unsecured Indebtedness in respect of Swap Agreements entered into in compliance with Section 9.17;
(i) Indebtedness of the Borrower in respect of Permitted Unsecured Debt and any Obligor to any other Obligor; provided that, in each case, Permitted Refinancing Indebtedness of such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided provided, that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or 500,000,000 of principal in the Equivalent Amount in other currencies) aggregate outstanding at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or time and (ii) under guaranties or letters of credit, surety bonds or performance bonds securing giving pro forma effect to such Indebtedness and the performance repayment of any Obligor other Indebtedness with the proceeds thereof, (A) no Default, Event of Default or any Borrowing Base Deficiency exists at such time, (B) the ratio of its Subsidiaries, Total Net Debt to EBITDAX for the most recent four Fiscal Quarters for which financial statements are available is in each case, in connection compliance with transactions permitted under Section 9(c)(v);
9.01(a) and (xiB) contingent obligations with respect the Availability is equal to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliatesgreater than 15%; and
(xivj) other Indebtedness approved not to exceed $15,000,000 in advance in writing by the Holders of aggregate at least a majority in aggregate principal amount of the outstanding Securitiesany one time outstanding.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Diversified Energy Co PLC), Revolving Credit Agreement (Diversified Energy Co PLC)
Indebtedness. Such Obligor will not, and The Issuer will not permit any of its Subsidiaries toRestricted Subsidiary, directly or indirectly, to create, incur, assume assume, guarantee, acquire, or permit become liable, contingently or otherwise, with respect to, or otherwise become responsible for payment of (collectively, "incur"), any Indebtedness for money borrowed; provided, however, that the foregoing limitations will not apply to exist the incurrence of any Indebtednessof the following, whether directly or indirectly, excepteach of which shall be given independent effect:
(a) Indebtedness outstanding on the date of this Indenture;
(b) Indebtedness of a Restricted Subsidiary that represents the assumption by such Restricted Subsidiary of Indebtedness of another Subsidiary, and Indebtedness owed by any Restricted Subsidiary to the Issuer or to another Subsidiary; provided that any such Indebtedness shall be at all times held by a Person which is either the Issuer or a Subsidiary; and provided, further, that upon the transfer or other disposition of any such Indebtedness to a Person other than the Issuer or another Subsidiary, the incurrence of such Indebtedness shall be deemed to be an incurrence that is not permitted by this clause (b);
(c) Indebtedness arising from (i) the Obligations;
(ii) Indebtedness owing under the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount endorsement of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereof;
(iii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) accounts payable to trade creditors negotiable instruments for goods and services and current operating liabilities (not the result of the borrowing of money) incurred deposit or collection or similar transactions in the ordinary course of business; or (ii) 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 Obligor’s or any overdraft is extinguished within five Business days of its 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 GAAPincurrence;
(vid) Indebtedness consisting arising from guarantees of loans and advances by third parties to employees and officers of a Restricted Subsidiary in the ordinary course of business for bona fide business purposes, provided that the aggregate amount of such guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its all Restricted Subsidiaries does not exceed $1,000,000;
(e) Indebtedness incurred by a foreign Restricted Subsidiary in the ordinary course of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securities.
Appears in 2 contracts
Samples: Indenture (Cardinal Health Inc), Indenture (Cardinal Health Inc)
Indebtedness. Such Obligor The Borrower will not, and nor will not it permit any of its Subsidiaries to, contract, create, incur, assume or permit to exist any Indebtedness, whether directly or indirectly, except:
(ia) Indebtedness arising under this Credit Agreement and the Obligationsother Credit Documents;
(iib) Indebtedness owing under of the Non-Convertible Credit Facility Loan Documents Borrower and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount any of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereof;
(iii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and its Subsidiaries set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders8.1;
(vc) accounts payable to trade creditors for goods and services and current operating liabilities purchase money Indebtedness (not including Capital Leases) hereafter incurred by the result of the borrowing of money) incurred in the ordinary course of such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor Borrower or any of its Subsidiaries in to finance the ordinary course purchase of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; fixed assets provided that (i) if secured, the collateral therefor consists solely total of the assets being financed, the products and proceeds thereof and books and records related thereto, and all such Indebtedness (for all such Persons taken together) shall not exceed an aggregate principal amount of $3,000,000 at any one time outstanding (including any such Indebtedness referred to in subsection (b) above (other than any such Indebtedness incurred in connection with acquisitions)); (ii) such Indebtedness when incurred shall not exceed the aggregate outstanding 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 Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any timerefinancing;
(xd) obligations of any Obligor the Borrower in respect of Hedging Agreements entered into in order to manage existing or any of its Subsidiaries (i) anticipated interest rate or exchange rate risks and not for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v)speculative purposes;
(xie) contingent obligations with respect to performance guaranties and surety bonds Intercompany Indebtedness incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiariesor for cash management purposes;
(xiif) obligations additional Subordinated Indebtedness which by its terms (i) requires repayment of principal (including any sinking fund) and annual cash interest payments in respect of netting servicesamounts not greater than and at such times not earlier than are required by the Subordinated Note Documents, overdraft protections (ii) is unsecured, and (iii) is on market terms, including without limitation subordination and other similar cash management products for deposit accountsintercreditor terms, that are consistent with the public bond market and that have been approved by the Required Lenders;
(xiiig) unsecured Subordinated Indebtedness issued in exchange for Subordinated Indebtedness listed on Schedule 8.1, provided such Subordinated Indebtedness meets the requirements of clauses (i), (ii) and (iii) of Section 8.1(f) above; and
(h) in addition to the Indebtedness otherwise permitted by this Section 8.1, other Indebtedness hereafter incurred by the Borrower or any of its Subsidiaries provided that (i) the loan documentation with respect to such Indebtedness shall not contain covenants or default provisions relating to the Borrower and its Subsidiaries that are more restrictive than the covenants and default provisions contained in the Credit Documents, (ii) on the date of incurrence of such Indebtedness after giving effect on a Pro Forma Basis to the incurrence of such Indebtedness of the Borrower or any Obligor not otherwise described in this Section 9(a)of its Subsidiaries, in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give no Default or Event of Default would exist hereunder, and (iii) the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to shall not exceed $2,500,000 at any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securitiestime.
Appears in 2 contracts
Samples: Credit Agreement (Personnel Group of America Inc), Credit Agreement (Personnel Group of America Inc)
Indebtedness. Such Obligor The Company will not, and will not permit any of its Subsidiaries toRestricted Subsidiary, to create, incur, assume incur or permit suffer to exist any Indebtedness, whether directly or indirectly, except:
(ia) The Loans and other Obligations under the ObligationsLoan Documents, (b) Indebtedness under the Senior Secured Loan Documents in an aggregate outstanding amount not to exceed $2,691,000,000 (less the amount of any Indebtedness outstanding, if any, under clause (d) below), (c) Indebtedness of the Company in respect of the New Senior Unsecured Notes; provided that the aggregate principal amount of Indebtedness at any time outstanding under clauses (a) and (c) shall not exceed $500,000,000 and (d) if the Replacement Facilities Effective Date has not occurred and the Existing Loan Agreement (or backstop facilities in replacement thereof) remains outstanding, Indebtedness thereunder in an aggregate principal amount not to exceed $750,000,000 (it being understood that to the extent the Replacement Facilities are outstanding, such Indebtedness under this clause (d) shall not be outstanding at the same time);
(ii) Indebtedness owing under of the Non-Convertible Credit Facility Loan Documents Company and Permitted Refinancings thereofits Restricted Subsidiaries existing as of the Execution Date and set forth on Schedule 6.18 and additional Indebtedness consisting of working capital facilities, letter of credit facilities, bank guarantee facilities or similar facilities; provided that Indebtedness outstanding in reliance on this clause (ii) shall not in the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereof50,000,000;
(iii) Indebtedness owing under consisting of avals by any of the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that Company or its Restricted Subsidiaries for the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereofbenefit of, and with respect to obligations which are not classified as Indebtedness under of, any of the Fee Letter (as defined Company or its Restricted Subsidiaries which are entered into in the Convertible Credit Facility Agreement)ordinary course of business and consistent with standard business practices;
(iv) Indebtedness existing on August 28, 2015 of any Person that becomes a Restricted Subsidiary after the date hereof (other than the Target and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreementits Restricted Subsidiaries); provided that, in each case, that such Indebtedness is subordinated to existed at the Obligations on terms satisfactory to time such Person becomes a Restricted Subsidiary and was not created in contemplation of or in connection with such Person becoming a Restricted Subsidiary, and the Required Holdersaggregate principal amount of Indebtedness permitted by this Section 6.18(iv) shall not exceed $25,000,000 at any time outstanding;
(v) accounts payable Any Permitted Refinancing Indebtedness in respect of any Indebtedness referred to trade creditors for goods and services and current operating liabilities in clauses (not i)(b), (i)(c) or (i)(d) (to the result extent such Permitted Refinancing Indebtedness otherwise complies with the requirements set forth in clause (i)(d) (it being understood such amount may be increased in compliance with the definition of the borrowing of moneyPermitted Refinancing Indebtedness)), (ii), (iii) incurred in the ordinary course of such Obligor’s or any of its 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(iv) above;
(vi) Indebtedness consisting of guarantees resulting arising from (a) the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, or (b) the honoring by any Obligor a bank or any other financial institution of its Subsidiaries a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business;
(vii) Receivables Indebtedness (excluding any intercompany Indebtedness among the Company and its Restricted Subsidiaries) permitted under Section 6.24;
(viii) Indebtedness (other than Indebtedness for borrowed money) arising from agreements of any Obligor to any other Obligor; provided thatthe Company or a Subsidiary providing for indemnification, contribution, earnout, adjustment of purchase price or similar obligations, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by incurred or assumed in connection any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (acquisition or the Equivalent Amount in other currencies) at any timeDisposition otherwise permitted under this Agreement;
(ix) normal Integrated Service Contract Debt in an aggregate amount outstanding at any one time not to exceed $100,000,000;
(x) Indebtedness incurred in the ordinary course of business equipment financingin connection with cash pooling arrangements and cash management incurred in the ordinary course of business in respect of netting services and similar arrangements in each case in connection with cash management and deposit accounts, but only to the extent, with respect to any such arrangements, that the total amount of deposits subject to such arrangements equals or exceeds the total amount of overdrafts or similar obligations subject thereto;
(xi) Indebtedness in respect of performance, surety, customs and appeal bonds, or any indemnity agreement related thereto, arising in the ordinary course of business;
(xii) Other Indebtedness of the Company and the Guarantors; provided that, at the time of the creation, incurrence or assumption of such other Indebtedness and after giving effect thereto, the aggregate amount of all such other Indebtedness does not exceed an amount equal to the greater of $100,000,000 and 2.5% of Total Tangible Assets as shown on or determined in accordance with the most recent financial statements of the Company delivered pursuant to Section 6.1(i) or (ii);
(xiii) Guarantee Obligations in respect of Indebtedness permitted under this Section 6.18; provided that (i) if secured, any Indebtedness that is Guaranteed is subordinated to the collateral therefor consists solely Obligations then any Guarantee Obligations in respect of such Indebtedness shall be subordinated to the Obligations of the applicable Loan Party to the same extent and on terms not materially less favorable to the Lenders as the Indebtedness so Guaranteed is subordinated to the Obligations and (ii) no such permitted Indebtedness in respect of the Senior Secured Credit Facilities, Senior Notes, New Senior Unsecured Notes and/or the Existing Loan Agreement (or backstop facilities in replacement thereof) (or in each case any Permitted Refinancing Indebtedness thereof) shall be Guaranteed by any Restricted Subsidiary unless such Restricted Subsidiary has Guaranteed the applicable Obligations pursuant to a Guaranty and (iii) such Guarantee Obligations shall be incurred in compliance with Section 6.15;
(xiv) Intercompany Indebtedness among the Company and its Restricted Subsidiaries in connection with effectuating the Transactions;
(xv) Indebtedness in respect of Hedging Agreements permitted by Section 6.21;
(xvi) Indebtedness among the Company and its Subsidiaries (including between or among Subsidiaries); provided that, any such Indebtedness owing by any Senior Secured Loan Party to any Subsidiary other than a Senior Secured Domestic Loan Party shall be unsecured;
(xvii) So long as no Default or Unmatured Default shall have occurred and be continuing, Indebtedness of the Company and the Guarantors if on a Pro Forma Basis after giving effect to the incurrence or assumption of such Indebtedness the Company’s Total Net Leverage Ratio is less than or equal to the Total Net Leverage Ratio applicable as of such date as set forth in Section 6.22 of the Senior Secured Credit Agreement less 0.25 to 1.00 (provided that if such ratio under Section 6.22 of the Senior Secured Credit Agreement is 4.00 to 1.00 or less no such reduction of 0.25 to 1.0 shall be made), recomputed as of the last day of the most recently ended fiscal quarter of the Company for which financial statements are available under 6.1(i) and (ii);
(xviii) Indebtedness of Foreign Subsidiaries in an aggregate principal amount not to exceed the greater of $100,000,000 and 2.5% of Total Tangible Assets as shown on or determined in accordance with the most recent financial statements of the Company delivered pursuant to Section 6.1(i) or (ii) outstanding at any time;
(xix) Indebtedness of the Company or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capitalized Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets being financedor secured by a Lien on any such assets prior to the acquisition thereof (and not in contemplation thereof), and extensions, renewals and replacements of any such Indebtedness that do not increase the products and proceeds thereof and books and records related thereto, outstanding principal amount thereof; provided that (i) such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement and (ii) the aggregate outstanding principal amount of such Indebtedness does permitted by this clause shall not exceed $2,300,000 (or the Equivalent Amount in other currencies) 20,000,000 at any timetime outstanding;
(xxx) obligations Indebtedness arising from the honoring by a bank or other financial institution of any Obligor or any of its Subsidiaries (i) for indemnificationa check, adjustment of purchase price draft or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred instrument drawn against insufficient funds in the ordinary course of business and business; provided, however, that such Indebtedness is extinguished within five Business Days of a type and amount consistent with past practices of the Obligors and their Subsidiariesincurrence;
(xiixxi) obligations Indebtedness of the Target and its Restricted Subsidiaries permitted to survive the Acquisition or be incurred thereafter and prior to the Domination Agreement Effective Date under the terms of the Acquisition Documentation (and any Permitted Refinancing Indebtedness in respect thereof) not secured by assets of the Company or its Restricted Subsidiaries (other than the Target and its Subsidiaries) or guaranteed by the Company or its Restricted Subsidiaries (other than the Target and its Subsidiaries);
(xxii) Indebtedness consisting of Bi-lateral LC/WC Agreements in an aggregate maximum principal exposure amount at any one time up to $300,000,000 (it being agreed the maximum principal exposure amount in respect of netting servicesBi-lateral LC/WC Agreements constituting revolving loan credit facilities outstanding at any one time shall not exceed $50,000,000 (in each case, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness such cap limitations to be calculated exclusive of any Obligor not otherwise described bank guarantee or the like issued in this Section 9(aconnection with a squeeze-out of any minority shareholders of the Target (i) in accordance with Sec. 327b(3) of the German Stock Corporation Act (Aktiengesetz), (ii) in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount accordance with Sec. 62 of the outstanding Securities written notice prior German Transformation Act (Umwandlungsgesetz) in conjunction with 327b(3) of the German Stock Corporation Act (Aktiengesetz) or (iii) in relation to a squeeze-out pursuant to 39a and 39b of the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its AffiliatesGerman Takeover Code (Wertpapiererwerbs- und Übernahmegesetz)); and
(xivxxiii) Intercompany Indebtedness approved representing consideration for any intercompany Disposition permitted by Section 6.14(xviii). The accrual of interest, the accretion of accreted value, the payment of interest in advance the form of additional Indebtedness, the payment of dividends on Disqualified Equity Interests in writing by the Holders form of at least additional shares of Disqualified Equity Interests, accretion or amortization of original issue discount or liquidation preferences and increases in the amount of Indebtedness outstanding solely as a majority result of fluctuations in aggregate the Exchange Rate or currencies will not be deemed to be an incurrence of Indebtedness for purposes of this Section 6.18. The principal amount of any non-interest bearing Indebtedness or other discount security constituting Indebtedness at any date shall be the principal amount thereof that would be shown on a consolidated balance sheet of the Company dated such date prepared in accordance with GAAP. This Agreement will not treat (1) unsecured Indebtedness as subordinated or junior in right of payment to secured Indebtedness merely because it is unsecured or (2) senior Indebtedness as subordinated or junior in right of payment to any other senior Indebtedness merely because it has a junior priority with respect to the same collateral. Further, for purposes of determining compliance with this Section 6.18, if an item of Indebtedness (or any portion thereof) meets the criteria of one or more of the categories of Indebtedness (or any portion thereof) permitted by this Section 6.18, the Company may, in its sole discretion, classify or divide (and reclassify and redivide) such item of Indebtedness (or any portion thereof) in any manner that complies with this Section 6.18 and will be entitled to only include the amount and type of such item of Indebtedness (or any portion thereof) in one of the above clauses (or any portion thereof) and such item of Indebtedness (or any portion thereof) shall be treated as having been incurred or existing pursuant to only such clause or clauses (or any portion thereof); provided, that all Indebtedness outstanding Securitiesunder this Agreement shall at all times be deemed to have been incurred pursuant to clause (a) of this Section 6.18.
Appears in 2 contracts
Samples: Bridge Credit Agreement (Diebold Inc), Bridge Credit Agreement (Diebold Inc)
Indebtedness. Such Obligor The Borrower will not, and nor will not it permit any of its Subsidiaries to, create, incur, assume incur or permit suffer to exist any Indebtedness, whether directly or indirectly, Indebtedness except:
(ia) the ObligationsIndebtedness incurred hereunder;
(iib) Indebtedness owing Obligations under the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereof;
(iii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) 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 such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiiiA) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in interest rate Swap Contracts up to an aggregate notional principal amount not to exceed at any time an amount equal to the Commitment of the Lender at such time, and (B) Swap Contracts entered into to hedge existing or anticipated foreign exchange or commodity price exposure not for speculative purposes;
(c) Guarantees and letters of credit permitted by Section 8.02;
(d) Indebtedness issued and outstanding on the Effective Date to the extent set forth on Schedule 8.01 and any renewals, extensions or refundings thereof in a principal amount not to exceed the amount so renewed, extended or refunded;
(e) Indebtedness of Teamco and its Subsidiaries permitted in accordance with the terms of the Teamco Revolving Facility;
(f) New Third-Party Debt so long as the Net Proceeds of such New Third-Party Debt are applied to prepay Delayed Draw Term Loans or reduce the Delayed Draw Term Loan Commitment, as applicable, in accordance with Section 2.05 and/or Section 2.06;
(g) Other Indebtedness of the Borrower and its Subsidiaries not for borrowed money in an aggregate principal amount at any time outstanding not to exceed $5,750,0005,000,000;
(h) Indebtedness constituting an Investment permitted under Section 8.04; provided that Issuer any Indebtedness of Borrower owed to any Affiliate shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior be subordinated to the incurrence Obligations pursuant to the Master Subordinated Intercompany Note;
(i) Indebtedness arising from netting services, overdraft protection, cash management services, endorsements or instruments and other items for deposit in the ordinary course of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliatesbusiness; and
(xivj) Indebtedness approved consisting of the financing of insurance premiums or take-or-pay obligations of the Company or any of the Restricted Subsidiaries contained in advance supply arrangements, in writing each case, in the ordinary course of business; provided, however, that the foregoing exceptions shall not permit any Guarantees by the Holders of at least a majority in aggregate principal amount Company of the outstanding SecuritiesIndebtedness of any Person other than any Subsidiary.
Appears in 2 contracts
Samples: Delayed Draw Term Loan Credit Agreement (Madison Square Garden Entertainment Corp.), Delayed Draw Term Loan Credit Agreement (Madison Square Garden Sports Corp.)
Indebtedness. Such Obligor None of the Borrowers will, nor will not, and will not it permit any of its Subsidiaries to, create, incur, assume incur or permit suffer to exist any Indebtedness, whether directly or indirectly, Indebtedness except:
(i) the Obligations;
(iia) Indebtedness owing under the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereof;
(iii) Indebtedness owing under the Convertible Credit Lenders hereunder, including, without limitation, Incremental Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) 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 such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor Loans in an aggregate principal amount up to but not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time650,000,000;
(ixb) normal course Indebtedness outstanding on the date hereof and listed in Part A of business equipment financing; provided that Schedule III hereto (i) if securedor, to the collateral therefor consists solely of extent not meeting the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) minimum thresholds for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiariesrequired listing on said Schedule III pursuant to Section 7.11 hereof, in each case, in connection with transactions permitted under Section 9(c)(van aggregate amount not exceeding $10,000,000);
(xic) contingent Affiliate Subordinated Indebtedness incurred in accordance with Section 8.13 hereof;
(d) Indebtedness of the Borrowers to any Subsidiary of the Borrowers, and of any Subsidiary of the Borrowers to the Borrowers or its other Subsidiaries;
(e) Indebtedness (other than Affiliate Subordinated Indebtedness) of the Borrowers and their Subsidiaries that is subordinated in right of payment to the obligations with of the Borrowers and their Subsidiaries under the Loan Documents (and which contains terms, including in respect of interest, amortization, defaults, mandatory redemptions and prepayments, and covenants) that are in each case satisfactory to the Administrative Agent and the Majority Lenders; and
(f) additional Indebtedness of the Borrowers and their Subsidiaries (including, without limitation, Capital Lease Obligations and other Indebtedness secured by Liens permitted under Section 8.06(h) hereof) up to but not exceeding an aggregate amount of $100,000,000 at any one time outstanding. In addition to the foregoing, the Borrowers will not, nor will they permit their Subsidiaries to, incur or suffer to exist any obligations in an aggregate amount in excess of $50,000,000 at any one time outstanding in respect of surety and performance guaranties bonds backing pole rental or conduit attachments and surety bonds incurred the like, or backing obligations under Franchises, arising in the ordinary course of business and of a type and amount consistent with past practices of the Obligors CATV Systems of the Borrowers and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securities.
Appears in 2 contracts
Samples: Credit Agreement (Mediacom Capital Corp), Credit Agreement (Mediacom Communications Corp)
Indebtedness. Such Obligor No Credit Party will, nor will not, and will not any Credit Party permit any of its Subsidiaries to, contract, create, incur, assume or permit suffer to exist any Indebtedness, whether directly Indebtedness of the Credit Parties or indirectlyany of their respective Subsidiaries, except:
(a) Indebtedness incurred under this Agreement and the other Loan Documents;
(b) the Indebtedness existing as of the date hereof, and any refinancing, extension, renewal or refunding of any such Indebtedness;
(i) Indebtedness consisting of capital lease obligations or similar obligations of the Obligations;
Credit Parties and their Subsidiaries, (ii) Indebtedness owing secured by a Lien referred to in Section 7.03(c), and (iii) any refinancing, extension, renewal or refunding of any such Indebtedness not involving an increase in the principal amount thereof, provided, the aggregate outstanding principal amount of Indebtedness permitted by this subpart (c) shall not exceed $10,000,000 at any time;
(d) any intercompany loans and advances made by a Credit Party to any other Credit Party;
(e) Indebtedness constituting Guaranty Obligations permitted by Section 7.05;
(f) Indebtedness in respect of bid, performance or surety bonds issued for the account of a Credit Party or any Subsidiary in the ordinary course of business, including guarantees of obligations of such Person with respect to letters of credit supporting such bid, performance or surety obligations;
(g) Indebtedness arising from (i) honoring by a bank or other financial institution of a check or draft or similar instrument inadvertently drawn against insufficient funds in the ordinary course of business, and (ii) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business;
(h) Indebtedness in respect of a sale or discounting of receivables, provided that there is no recourse for such indebtedness beyond the receivables collected;
(i) to the extent constituting Indebtedness, Investments permitted under Section 7.05(j);
(j) additional unsecured Indebtedness of the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; Parties or any of their respective Subsidiaries to the extent not permitted by any of the foregoing clauses, provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereof;
(iii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) 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 such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) 10,000,000 at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securities.
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (Peabody Energy Corp)
Indebtedness. Such Obligor The Company will not, and nor will not it permit any of its Subsidiaries Subsidiary to, create, incur, assume incur or permit suffer to exist any Indebtedness, whether directly or indirectly, except:
(i) 10.5.1 the Secured Obligations;
(ii) Indebtedness owing under the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereof;
(iii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) 10.5.2 Indebtedness existing on August 28, 2015 the date hereof and set forth described in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders10.5;
10.5.3 Indebtedness arising under Rate Management Transactions;
10.5.4 secured or unsecured purchase money Indebtedness (v) accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of moneyincluding Capitalized Leases) incurred in by the ordinary course of such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor Company or any of its Subsidiaries after February 8, 2010 to finance the acquisition of assets used in its business, if (1) the ordinary course total of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, all such Indebtedness is unsecured for the Company and subordinated to its Subsidiaries taken together incurred on or after February 8, 2010, when aggregated with the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in permitted under Section 10.5.9, shall not exceed an aggregate principal amount not exceeding of $1,150,000 (or the Equivalent Amount in other currencies) 10,000,000 at any timeone time outstanding, (2) such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed, (3) 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 (4) any Lien securing such Indebtedness is permitted under Section 10.6 (such Indebtedness being referred to herein as “Permitted Purchase Money Indebtedness”);
10.5.5 Indebtedness arising from intercompany loans and advances (ixi) normal course of business equipment financingmade by any Subsidiary to any Credit Party, (ii) made by the Company to any other Credit Party; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of Company agrees that all such Indebtedness does not exceed $2,300,000 shall be expressly subordinated to the Secured Obligations pursuant to subordination provisions reasonably acceptable to the Required Holders or (or iii) made by the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor Company or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including Subsidiary to any Subsidiary solely for the deferred purchase price purpose of property acquired in a Permitted Acquisition)facilitating, or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices practice as of the Obligors Closing Date (and their Subsidiariesexcluding, for the avoidance of doubt, any business relating to the acquisition of receivables owed by a Person subject to bankruptcy or similar proceedings), the payment of fees and expenses in connection with collection actions or proceedings;
(xii) 10.5.6 guaranty obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accountsthe Company of any Indebtedness of any Subsidiary permitted under Section 10.5.2;
(xiii) 10.5.7 guaranty obligations of any Subsidiary of the Company that is a Guarantor with respect to any Indebtedness of the Company or any other Subsidiary permitted under this Section 10.5, other than the Permitted Foreign Subsidiary Non-Recourse Indebtedness;
10.5.8 [Intentionally Omitted];
10.5.9 additional unsecured Indebtedness of the Company or any Obligor Domestic Subsidiary, to the extent not otherwise described in permitted under this Section 9(a)10.5; provided, however, that the aggregate principal amount of such additional Indebtedness, when aggregated with the Indebtedness permitted under Section 10.5.4 shall not exceed $12,500,000 at any time outstanding;
10.5.10 bonds or other Indebtedness required by collections licensing laws in the ordinary course of the Credit Parties’ business;
10.5.11 Indebtedness, liabilities and contingent obligations incurred or assumed in connection with a Permitted Acquisition; provided, however, that any such Indebtedness incurred or assumed by a Person that is a Foreign Subsidiary after giving effect to the consummation of such Permitted Acquisition shall be permitted only to the extent such Indebtedness constitutes Permitted Foreign Subsidiary Non-Recourse Indebtedness;
10.5.12 Indebtedness under the Existing Unsecured Notes and the guarantee by the Company and the Guarantors of such Indebtedness;
10.5.13 Indebtedness of Domestic Subsidiaries in an aggregate amount of not more than $15,000,000 and Permitted Foreign Subsidiary Non-Recourse Indebtedness;
10.5.14 Indebtedness constituting Permitted Foreign Subsidiary Investments/Loans; and
10.5.15 additional unsecured or subordinated Indebtedness of the Company or any of its Domestic Subsidiaries, to exceed at any time $5,750,000the extent not otherwise permitted under this Section 10.5; provided provided, however, that Issuer shall give (i) the Holders of at least a majority in aggregate principal amount of such additional Indebtedness shall not exceed $100,000,000, and (ii) if such Indebtedness is subordinated, the outstanding Securities written notice prior terms of such subordination shall be reasonably acceptable to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding SecuritiesRequired Holders.
Appears in 2 contracts
Samples: Senior Secured Note Purchase Agreement (Encore Capital Group Inc), Senior Secured Note Purchase Agreement (Encore Capital Group Inc)
Indebtedness. Such Obligor will Each Borrower and Guarantor shall not, and will shall not permit any of its Subsidiaries Subsidiary to, incur, create, incurassume, assume become or be liable in any manner with respect to, or permit to exist exist, any Indebtedness, whether or guarantee, assume, endorse, or otherwise become responsible for (directly or indirectly), the Indebtedness, performance, obligations or dividends of any other Person, except:
(a) the Obligations;
(b) purchase money Indebtedness (including Capital Leases) arising after the date hereof to the extent secured by purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on Real Property not to exceed $6,000,000 in the aggregate at any time outstanding so long as such security interests and mortgages do not apply to any property of such Borrower, Guarantor or Subsidiary other than the Equipment or Real Property so acquired, and the Indebtedness secured thereby does not exceed the cost of the Equipment or Real Property so acquired, as the case may be;
(c) guarantees by any Borrower or Guarantor of the Obligations of the other Borrowers or Guarantors in favor of Agent for the benefit of the other Secured Parties;
(d) the Indebtedness of any Borrower or Guarantor to any other Borrower or Guarantor arising after the date hereof pursuant to loans by any Borrower or Guarantor permitted under Section 9.10(g) hereof;
(e) unsecured Indebtedness of any Borrower or Guarantor arising after the date hereof to any third person (but not to any other Borrower or Guarantor), provided, that, each of the following conditions is satisfied as determined by Agent: (i) such Indebtedness shall be on terms and conditions acceptable to Agent and shall be subject and subordinate in right of payment to the right of the Secured Parties to receive the prior indefeasible payment and satisfaction in full payment of all of the Obligations pursuant to the terms of an intercreditor agreement between Agent and such third party, in form and substance satisfactory to Agent, (ii) Agent shall have received not less than ten (10) days prior written notice of the intention of such Borrower or Guarantor to incur such Indebtedness, which notice shall set forth in reasonable detail satisfactory to Agent the amount of such Indebtedness, the person or persons to whom such Indebtedness will be owed, the interest rate, the schedule of repayments and maturity date with respect thereto and such other information as Agent may request with respect thereto, (iii) Agent shall have received true, correct and complete copies of all agreements, documents and instruments evidencing or otherwise related to such Indebtedness, (iv) except as Agent may otherwise agree in writing, all of the proceeds of the loans or other accommodations giving rise to such Indebtedness shall be paid to Agent for application to the Obligations in such order and manner as Agent may determine or at Agent’s option, to be held as cash collateral for the Obligations, (v) in no event shall the aggregate principal amount of such Indebtedness incurred during the term of this Agreement exceed $5,000,000, (vi) as of the date of incurring such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or have occurred, (vii) such Borrower and Guarantor shall not, directly or indirectly, (A) amend, modify, alter or change the terms of such Indebtedness or any agreement, document or instrument related thereto, except, that, such Borrower or Guarantor may, after prior written notice to Agent, amend, modify, alter or change the terms thereof so as to extend the maturity thereof, or defer the timing of any payments in respect thereof, or to forgive or cancel any portion of such Indebtedness (other than pursuant to payments thereof), or to reduce the interest rate or any fees in connection therewith, or (B) redeem, retire, defease, purchase or otherwise acquire such Indebtedness (except pursuant to regularly scheduled payments permitted herein), or set aside or otherwise deposit or invest any sums for such purpose, and (viii) Borrowers and Guarantors shall furnish to Agent all notices or demands in connection with such Indebtedness either received by any Borrower or Guarantor or on its behalf promptly after the receipt thereof, or sent by any Borrower or Guarantor or on its behalf concurrently with the sending thereof, as the case may be;
(f) the Term B Loan Debt, provided, that each of the following conditions is satisfied as determined by Agent:
(i) the Obligationsaggregate principal amount of such Indebtedness shall not exceed $35,000,000, less the aggregate amount of all repayments, repurchases or redemptions thereof, whether optional or mandatory;
(ii) Agent shall have received true, correct and complete copies of all of the Term B Loan Documents, as duly authorized, executed and delivered by the parties thereto;
(iii) Borrowers and Guarantors shall not, directly or indirectly, amend, modify, alter or change the terms of the Term B Loan Debt or any of the Term B Loan Financing Agreements, except, that, Borrowers and Guarantors may, after prior written notice to Agent, amend, modify, alter or change the terms thereof in a manner which is not prohibited by the Term B Loan Intercreditor Agreement; and
(iv) Borrowers and Guarantors shall furnish to Agent all notices or demands in connection with the Term B Loan Debt either received by any Borrower or Guarantor or on its behalf promptly after the receipt thereof, or sent by any Borrower or Guarantor or on its behalf concurrently with the sending thereof, as the case may be;
(g) the Indebtedness owing of Borrowers and Guarantors to Subordinated Noteholders and Subordinated Note Trustee evidenced by or arising under the Non-Convertible Credit Facility Loan Subordinated Note Documents and Permitted Refinancings thereof; provided that (as in effect on the date hereof), provided, that:
(i) the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum $72,925,500 (exclusive of $35,000,000 and the amount non-cash capitalized interest or fees in respect of interest thereon compounded and such Indebtedness which is added to the principal amount thereof pursuant to the Subordinated Note Documents (as in effect on the date hereof)), less the aggregate amount of all repayments, repurchases or redemptions thereof;, whether optional or mandatory,
(ii) Agent shall have received true, correct and complete copies of all of the Subordinated Note Documents, as duly authorized, executed and delivered by the parties thereto,
(iii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum be subject to and subordinate in right of $69,095,709 and the amount of interest thereon compounded and added payment to the principal thereof, right of the Secured Parties to receive the prior indefeasible payment and Indebtedness under satisfaction in full of all of the Fee Letter (as defined in Obligations pursuant to the Convertible Credit Facility terms of the Subordinated Noteholder Intercreditor Agreement);
(iv) Indebtedness existing on August 28Borrowers and Guarantors shall not, 2015 and set forth directly or indirectly, make, or be required to make, any payments in Schedule 9.01 respect of such Indebtedness, except, as permitted by the Non-Convertible Credit Facility Subordinated Noteholder Intercreditor Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) accounts payable to trade creditors for goods Borrowers and services and current operating liabilities Guarantors shall not, directly or indirectly: (not the result A) amend, modify, alter or change any of the borrowing of money) incurred in the ordinary course terms of such Obligor’s Indebtedness or any of its Subsidiaries’ business the Subordinated Note Documents (as in accordance with customary effect on the date hereof), except, that, Borrowers and Guarantors may, after prior written notice to Agent, amend, modify, alter of change the terms and paid within thereof in a manner which is expressly permitted by Section 15 of the specified timeSubordinated Noteholder Intercreditor Agreement, unless contested or (B) redeem, retire, defease, purchase or otherwise acquire such Indebtedness, or set aside or otherwise deposit or invest any sums for such purpose, except as permitted in good faith by appropriate proceedings and reserved for in accordance with GAAP;clause (iv) above, and
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor Borrowers and Guarantors shall furnish to Agent all notices or any of its Subsidiaries in the ordinary course of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, demands in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to either received by any director Borrower or executive officer of Issuer Guarantor or on its behalf promptly after the receipt thereof, or sent by any of Borrower or Guarantor or on its Affiliates; and
(xiv) Indebtedness approved in advance in writing by behalf concurrently with the Holders of at least a majority in aggregate principal amount of sending thereof, as the outstanding Securities.case may be;
Appears in 2 contracts
Samples: Loan and Security Agreement (Handy & Harman Ltd.), Loan and Security Agreement (WHX Corp)
Indebtedness. Such Obligor The Borrower will not, and nor will not it permit any of its Subsidiaries to, create, incur, assume or permit to exist any Indebtedness, whether directly or indirectly, except:
(ia) the ObligationsIndebtedness created hereunder;
(b) Secured Longer-Term Indebtedness and Unsecured Longer-Term Indebtedness in an aggregate amount that (i) taken together with other then-outstanding Indebtedness, does not exceed the amount required to comply with the provisions of Section 6.07(b) and (ii) in the case of Secured Longer-Term Indebtedness, taken together with Indebtedness owing permitted under the Non-Convertible Credit Facility Loan Documents clauses (a) and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount (g) of all such Indebtedness shall this Section 6.01 does not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereofBorrowing Base;
(iiic) Indebtedness owing under the Convertible Credit Facility Loan Documents and Other Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement)Indebtedness;
(ivd) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required HoldersFinancing Subsidiaries;
(ve) accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred repurchase obligations arising in the ordinary course of such Obligor’s or any of its 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 GAAPrespect to U.S. Government Securities;
(vif) Indebtedness consisting obligations payable to clearing agencies, brokers or dealers in connection with the purchase or sale of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries securities in the ordinary course of business;
(viig) Secured Shorter-Term Indebtedness of any Obligor to any other Obligor; provided that, in each case, such and Unsecured Shorter-Term Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount (determined at the time of the incurrence of such Indebtedness) not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course 5% of business equipment financing; provided Shareholders’ Equity and that (i) if securedtaken together with other then-outstanding Indebtedness, does not exceed the collateral therefor consists solely amount required to comply with the provisions of the assets being financed, the products and proceeds thereof and books and records related thereto, Section 6.07(b) and (ii) the aggregate outstanding principal amount taken together with Indebtedness permitted under clause (a), and Secured Longer-Term Indebtedness permitted under clause (b), of such Indebtedness this Section 6.01, does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its AffiliatesBorrowing Base; and
(xivh) Indebtedness approved obligations (including Guarantees) in advance in writing by the Holders respect of at least a majority in aggregate principal amount of the outstanding SecuritiesStandard Securitization Undertakings.
Appears in 2 contracts
Samples: Amendment No. 1 (BlackRock Kelso Capital CORP), Senior Secured Credit Agreement (BlackRock Kelso Capital CORP)
Indebtedness. Such Obligor will not, and will not permit any of its Subsidiaries toIncur, create, incur, assume or permit to exist any Indebtedness, whether directly or indirectly, except:
(a) (i) Indebtedness existing on the Obligations;
Closing Date (other than any Indebtedness of Parent or any Subsidiary owed to Parent or any Subsidiary); provided that any Indebtedness that is in excess of $2,000,000 individually or $10,000,000 in the aggregate shall be permitted under this clause (a)(i) only if such Indebtedness is set forth on Schedule 6.01 and (ii) any Permitted Refinancing Indebtedness owing under incurred to Refinance Indebtedness permitted by the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereof;
foregoing subclause (iii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreementi);
(ivb) Indebtedness existing on August 28under the other Loan Documents;
(c) Indebtedness (if any) deemed to exist with respect to Swap Agreements not entered into for speculative purposes and under Cash Management Agreements;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided thathealth, disability or other employee benefits or property, casualty or liability insurance to Parent or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each casecase in the ordinary course of business; provided, that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holdersobligations are reimbursed not later than 30 days following such incurrence;
(ve) accounts payable Indebtedness of Parent owed to trade creditors for goods any Subsidiary and services and of any Subsidiary owed to Parent or any other Subsidiary; provided, that other than in the case of intercompany current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of such Obligor’s or any of its Subsidiaries’ business in accordance connection with customary terms the cash management, tax and paid within accounting operations of Parent and the specified timeSubsidiaries, unless contested in good faith (i) any Indebtedness owed by appropriate proceedings a Loan Party to a Subsidiary that is not a Loan Party shall be evidenced by (x) the Global Intercompany Note or (y) another promissory note containing substantially similar subordination provisions and reserved for in accordance with GAAP(ii) any Indebtedness owed by a Subsidiary that is not a Loan Party to a Loan Party may be evidenced by the Global Intercompany Note;
(vif) Indebtedness consisting in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees resulting from endorsement and similar obligations, in each case outstanding on the Closing Date or otherwise provided in the ordinary course of negotiable instruments for collection by any Obligor business (whether or any not consistent with past practices) of its Subsidiaries Parent and the Subsidiaries, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(viig) 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 or other cash management services in the ordinary course of business;
(A) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured Loan Party and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Acquired Indebtedness of Parent or any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financingSubsidiary; provided that (i) if securedno Event of Default shall have occurred or be continuing or would result from the incurrence or existence of such additional Indebtedness or from the application of proceeds thereof, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the Total Net Leverage Ratio shall not exceed 5.00:1.00 calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period, (iii) other than in the case of Acquired Indebtedness, the final maturity date of such Indebtedness shall be no earlier than six months following the then Latest Maturity Date (other than customary offers to repurchase upon a change of control, asset sale or event of loss (so long as, in the case of a change of control offer to purchase provision, a change of control would not be triggered thereunder unless a Change of Control is also triggered hereunder, and in the case of an asset sale or event of loss offer to purchase provision, the net proceeds of any asset sale are permitted to be applied to the prepayment of the Loans first or, in the case of Indebtedness secured by Other First Liens, on a not less than ratable basis than such Indebtedness) and customary acceleration rights after an event of default), (iv) other than in the case of Acquired Indebtedness, the Weighted Average Life to Maturity of such Indebtedness shall not be shorter than the remaining Weighted Average Life to Maturity of the existing Term B Loans and (v) other than in the case of Acquired Indebtedness, the covenants, events of default, guarantees and other terms of such Indebtedness (other than pricing and redemption premiums), taken as a whole, shall not be more restrictive to Parent and the Subsidiaries than those set forth in this Agreement; provided that a certificate of the Chief Financial Officer of Parent delivered to the Administrative Agent in good faith at least three Business Days (or such shorter period as the Administrative Agent may reasonably agree) prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that Parent has determined in good faith that such terms and conditions satisfy the requirement in this subclause (v) shall be conclusive evidence that such terms and conditions satisfy the requirement in this subclause (v) and (B) Permitted Refinancing Indebtedness in respect of Indebtedness permitted by the foregoing clause (A);
(i) mortgage financings and other purchase money Indebtedness incurred by Parent or any Subsidiary prior to or within 270 days after the acquisition, lease, construction, repair, replacement or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interests of any person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, repair, replacement or improvement and Capital Lease Obligations of Parent or any Subsidiary, in each case, so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) the aggregate outstanding principal amount of such Indebtedness at any time outstanding does not exceed the greater of (X) $2,300,000 75,000,000 and (or the Equivalent Amount in other currenciesY) at the time of any timeincurrence under this paragraph (i), 37.5% of the EBITDA on a Pro Forma Basis for the Test Period most recently ended;
(xj) obligations other Indebtedness of Parent or any Subsidiary in an aggregate principal amount at any time outstanding that does not exceed the greater of (X) $100,000,000 and (Y) at the time of any Obligor or any incurrence under this paragraph (j), 50% of its Subsidiaries the EBITDA on a Pro Forma Basis for the Test Period most recently ended;
(k) Guarantees (i) by any Loan Party of any Indebtedness of any other Loan Party permitted to be incurred under this Agreement, (ii) by any Loan Party of Indebtedness otherwise permitted hereunder of any Subsidiary that is not a Loan Party to the extent such Guarantees are permitted by Section 6.04(b)(iii), and (iii) by any Subsidiary that is not a Loan Party of Indebtedness of another Subsidiary that is not a Loan Party; provided, that Guarantees by any Loan Party under this paragraph (k) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be subordinated to the Obligations to at least the same extent such other Indebtedness is so subordinated;
(l) Indebtedness arising from agreements of Parent or any Subsidiary providing for indemnification, adjustment of purchase price or acquisition price, earnouts or similar obligations (including obligations, in each case, incurred or assumed in connection with any Permitted Business Acquisition or the disposition of any business, assets or a Subsidiary not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or a Subsidiary for the deferred purchase price purpose of property acquired financing such acquisition; provided, that in respect of the disposition of any business, assets or a Permitted Acquisition)Subsidiary, such Indebtedness shall not exceed the proceeds of such disposition;
(m) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business or consistent with past practice or industry practice;
(n) Indebtedness consisting of (i) the financing of insurance premiums or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiariestake-or-pay obligations contained in supply arrangements, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiariesbusiness;
(xiio) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor Subsidiaries that are not otherwise described in this Section 9(a), Loan Parties in an aggregate amount not to exceed at any time outstanding the greater of (X) $5,750,00040,000,000 and (Y) at the time of any incurrence under this paragraph (o), 20% of EBITDA on a Pro Forma Basis for the Test Period most recently ended;
(p) unsecured Indebtedness constituting obligations of Parent or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided provided, that Issuer shall give such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 90 days after the Holders incurrence of at least the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Swap Agreements;
(i) secured Indebtedness of Subsidiary Loan Parties under local lines of credit in the ordinary course of business and consistent with past practices and (ii) Indebtedness of Parent and its Subsidiaries incurred in the ordinary course of business under overdraft facilities (including, but not limited to, intraday, ACH and purchasing card/T&E services), in each case, extended by one or more financial institutions reasonably acceptable to the Administrative Agent or by one or more of the Lenders or L/C Issuers or their Affiliates and (in each case) established for Parent’s and the Subsidiaries’ ordinary course of operations;
(r) (i) Specified Prepayment Debt the Net Proceeds of which are applied solely to the prepayment of Loans in accordance with Section 2.12(b) and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(s) Indebtedness consisting of Indebtedness issued by Parent or any Subsidiary to current or former officers, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of Parent permitted by Section 6.06;
(t) Indebtedness consisting of obligations of Parent or any Subsidiary to any of their employees under deferred compensation or other similar arrangements incurred by such person in connection with Permitted Business Acquisitions or any other Investment permitted hereunder or in the ordinary course of business;
(u) Indebtedness of Parent or any Subsidiary to any joint venture (regardless of the form of legal entity) that is not a majority Subsidiary arising in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self insurance arrangements) of Parent and the Subsidiaries;
(i) Incremental Equivalent Debt in an aggregate principal amount at any time outstanding not to exceed, together with the aggregate amount of Incremental Commitments made after the Closing Date, the Incremental Amount and (ii) Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness incurred pursuant to subclause (i);
(w) Indebtedness of joint ventures and/or, without duplication, Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures, of Parent or any Subsidiary not in excess, at any one time outstanding, of the outstanding Securities written notice prior to greater of (X) $100,000,000 and (Y) at the incurrence time of any such Indebtedness under incurrence pursuant to this Section 9(a)(xiiiparagraph (w), 50% of the EBITDA on a Pro Forma Basis for the Test Period most recently ended;
(x) owing to any director or executive officer Settlement Indebtedness;
(y) Customer deposits and advance payments received in the ordinary course of Issuer or any business from customers for goods and services purchased in the ordinary course of its Affiliatesbusiness; and
(xivz) all premium (if any, including tender premiums), expenses, defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in paragraphs (a) through (y) above. For purposes of determining compliance with this Section 6.01, the amount of any Indebtedness approved denominated in advance any currency other than Dollars shall be calculated based on customary currency exchange rates in writing by effect, in the Holders case of such Indebtedness incurred on or prior to the Closing Date, on the Closing Date and, in the case of such Indebtedness incurred after the Closing Date, on the date that such Indebtedness was incurred; provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a currency other than Dollars (or in a different currency from the Indebtedness being refinanced), and such refinancing would cause the applicable Dollar-denominated restriction to be exceeded if calculated at least a majority the relevant currency exchange rate in aggregate effect on the date of such refinancing, such Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed (i) the outstanding Securitiesprincipal amount of such Indebtedness being refinanced plus (ii) the aggregate amount of fees, underwriting discounts, premiums (including tender premiums), defeasance costs and other costs and expenses incurred in connection with such refinancing. For purposes of the foregoing, with respect to revolving Indebtedness, Parent may elect to treat the full committed amount to be incurred at the date the commitment becomes effective (or on the Closing Date if such effective date was prior to the Closing Date).
Appears in 2 contracts
Samples: Credit Agreement (EVERTEC, Inc.), Credit Agreement (EVERTEC, Inc.)
Indebtedness. Such Obligor will not, and will not permit any of its Subsidiaries to, createCreate, incur, assume or permit suffer to exist any Indebtedness, whether directly or indirectly, exceptother than:
(ia) the ObligationsIndebtedness under this Agreement;
(iib) Indebtedness owing under outstanding on the Non-Convertible Credit Facility Loan Documents date hereof or pursuant to lines of credit in effect on the date hereof and Permitted Refinancings described on Schedule 8.1(b), together with all extensions, renewals and refinancings thereof; provided that provided, however, any such extensions, renewals and refinancings shall not, without the aggregate outstanding principal amount written consent of all the Lender, increase any such Indebtedness shall not exceed at any time or modify the sum terms of $35,000,000 and the amount of interest thereon compounded and added said Indebtedness on terms less favorable to the principal thereofmaker or obligor;
(iiic) Indebtedness owing under Purchase money indebtedness to the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; extent secured by a Lien permitted by Section 8.2(b) provided that the aggregate outstanding principal amount of all such Indebtedness shall purchase money indebtedness does not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement)5,000,000;
(ivd) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) accounts payable to trade creditors for goods and services and Unsecured current operating liabilities (not the result of the borrowing of moneyother than liabilities for borrowed money or liabilities evidenced by promissory notes, bonds or similar instruments) incurred in the ordinary course of such Obligor’s business (whether now outstanding or any of its Subsidiaries’ business in accordance with customary terms hereafter arising or incurred) and paid within the specified timeeither (i) not more than thirty (30) days past due, unless contested or (ii) being disputed in good faith by appropriate proceedings with reserves for such disputed liability maintained in conformity with GAAP and reserved for Indebtedness in accordance with GAAP;
(vi) Indebtedness consisting the nature of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries contingent repayment obligations arising in the ordinary course of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products with respect to-deposits and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any timedown payments;
(xe) obligations The Intercompany Loans described on Schedule 6.22 and any other loans between Consolidated Companies not exceeding individually at any time the amount of $500,000 and in the aggregate at any Obligor time the amount of $1,000,000 (excluding Intercompany Loans listed on Schedule 6.22) provided that no loan or any other extension of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for credit may be made by a Guarantor to another Consolidated Company that is not a Guarantor hereunder unless otherwise agreed in writing by the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v)Lender;
(xif) contingent obligations with respect Unsecured, Subordinated Debt, not to performance guaranties exceed an aggregate amount of $25,000,000, and surety bonds incurred other Subordinated Debt in form and substance acceptable to the ordinary course of business Lender and of a type and amount consistent with past practices of the Obligors and their Subsidiariesevidenced by its written consent thereto;
(xiig) obligations in respect Unsecured Indebtedness without any limitation of netting services, overdraft protections and other similar cash management products for deposit accounts;amount provided that the maturity of said Indebtedness is longer than the maturity of the Facility; and
(xiiih) unsecured Unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount due under the 2004 Note Offering not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of $200,000,000 and unsecured Indebtedness due under the outstanding Securities written notice prior 2006 Note Offering not to exceed at any time the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securities$200,000,000.
Appears in 2 contracts
Samples: Revolving and Term Loan Agreement (Brown & Brown Inc), Revolving Loan Agreement (Brown & Brown Inc)
Indebtedness. Such Obligor will Each Borrower and Guarantor shall not, and will shall not permit any of its Subsidiaries Subsidiary to, incur, create, incurassume, assume become or be liable in any manner with respect to, or permit to exist exist, any Indebtedness, whether or guarantee, assume, endorse, or otherwise become responsible for (directly or indirectly), the Indebtedness, performance, obligations or dividends of any other Person, except:
(ia) the Obligations;
(iib) purchase money Indebtedness owing under (including Capital Leases) arising after the Non-Convertible Credit Facility Loan Documents date hereof to the extent secured by purchase money security interests in Equipment (including Capital Leases) and Permitted Refinancings thereof; provided that purchase money mortgages on Real Property not to exceed $10,000,000 in the aggregate at any time outstanding principal amount so long as such security interests and mortgages do not apply to any property of all such Borrower, Guarantor or Subsidiary other than the Equipment or Real Property so acquired, and the Indebtedness secured thereby does not exceed the cost of the Equipment or Real Property so acquired, as the case may be;
(c) guarantees by any Borrower or Guarantor or other Subsidiary of the Indebtedness or other obligations of any other Borrowers or Guarantors so long as such Indebtedness is otherwise permitted under this Section 9.9 and such other obligations are not prohibited by the terms of this Agreement;
(d) the Indebtedness of any Borrower, Guarantor or other Subsidiary to any other Borrower or Guarantor or other Subsidiary arising after the date hereof pursuant to loans by any Borrower or Guarantor permitted under Sections 9.10(g), 9.10(h), and 9.10(i) hereof;
(e) unsecured Indebtedness of any Borrower, Guarantor or Subsidiary arising after the date hereof to any third Person (but not to any other Borrower or Guarantor), provided, that, each of the following conditions is satisfied as determined by Agent: (i) such Indebtedness shall be on terms and conditions acceptable to Agent and shall be subject and subordinate in right of payment to the right of Agent and Lenders to receive the prior payment and satisfaction in full payment of all of the Obligations pursuant to the terms of an intercreditor and subordination agreement between Agent and such third party, in form and substance satisfactory to Agent, (ii) Agent shall have received not exceed at any time less than ten (10) days prior written notice of the sum intention of $35,000,000 and such Borrower or Guarantor to incur such Indebtedness, which notice shall set forth in reasonable detail satisfactory to Agent the amount of such Indebtedness, the Person or Persons to whom such Indebtedness will be owed, the interest thereon compounded rate, the schedule of repayments and added to the principal thereof;
maturity date with respect thereto and such other information as Agent may request with respect thereto, (iii) Indebtedness owing under the Convertible Credit Facility Loan Documents Agent shall have received true, correct and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount complete copies of all agreements, documents and instruments evidencing or otherwise related to such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereofIndebtedness, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28except as Agent may otherwise agree in writing, 2015 upon the occurrence and set forth in Schedule 9.01 continuance of an Event of Default or during a Compliance Period, all of the Non-Convertible Credit Facility cash proceeds of such loans or other accommodations incurred during the occurrence of such Event of Default or during such Compliance Period shall be, subject to the Intercreditor Agreement; provided that, in each case, such Indebtedness is subordinated paid to Agent for application to the Obligations on terms satisfactory in such order and manner as Agent may determine or at Agent’s option, to be held as cash collateral for the Required Holders;
Obligations, (v) 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 such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) no event shall the aggregate outstanding principal amount of such Indebtedness does not incurred during the term of this Agreement exceed $2,300,000 5,000,000, (vi) as of the date of incurring such Indebtedness and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and (vii) such Borrower and Guarantor shall not, directly or indirectly, (A) amend, modify, alter or change the Equivalent Amount terms of such Indebtedness or any agreement, document or instrument related thereto, except, that, such Borrower or Guarantor may, after prior written notice to Agent, amend, modify, alter or change the terms thereof so as to extend the maturity thereof, or defer the timing of any payments in respect thereof, or to forgive or cancel any portion of such Indebtedness (other currenciesthan pursuant to payments thereof), or to reduce the interest rate or any fees in connection therewith, or (B) at redeem, retire, defease, purchase or otherwise acquire such Indebtedness (except as permitted by Section 9.24), or set aside or otherwise deposit or invest any timesums for such purpose, in each case without the written consent of Agent;
(xf) obligations Indebtedness of any Obligor Borrower, Guarantor or any of its their Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred entered into in the ordinary course of business pursuant to a Hedge Agreement; provided, that, (i) such arrangements are not for speculative purposes, and of a type and amount consistent with past practices (ii) such Indebtedness shall be unsecured, except to the extent such Indebtedness constitutes part of the Obligors and their SubsidiariesObligations arising under or pursuant to Hedge Agreements with any Bank Product Provider that are secured under the terms hereof or except to the extent secured by pledges or deposits of cash as permitted under Section 9.8 hereof;
(xiig) obligations the Indebtedness set forth on Schedule 9.9 hereto; provided, that, (i) Borrowers and Guarantors may only make regularly scheduled payments of principal and interest in respect of netting servicessuch Indebtedness in accordance with the terms of the agreement or instrument evidencing or giving rise to such Indebtedness as in effect on the date hereof, overdraft protections and other similar cash management products for deposit accounts;
(xiiiii) unsecured Borrowers and Guarantors shall not, directly or indirectly, (A) amend, modify, alter or change the terms of such Indebtedness or any agreement, document or instrument related thereto as in effect on the date hereof except, that, Borrowers and Guarantors may, after prior written notice to Agent, amend, modify, alter or change the terms thereof so as to extend the maturity thereof, or defer the timing of any Obligor not otherwise described payments in this Section 9(arespect thereof, or to forgive or cancel any portion of such Indebtedness (other than pursuant to payments thereof), in an aggregate amount not or to exceed at any time $5,750,000; provided that Issuer shall give reduce the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer interest rate or any of its Affiliates; and
fees in connection therewith, or (xivB) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securities.redeem, retire, defease, purchase or otherwise acquire such Indebtedness, or set aside or otherwise deposit or invest any sums for such purpose;
Appears in 2 contracts
Samples: Loan and Security Agreement (Franchise Group, Inc.), Loan and Security Agreement (Franchise Group, Inc.)
Indebtedness. Such Obligor will not, and will not permit any of its Subsidiaries to, createCreate, incur, assume or permit suffer to exist any Indebtedness, whether directly or indirectlyexcept the following, exceptwithout duplication:
(ia) Indebtedness of the ObligationsBorrower and other Loan Parties under the Loan Documents;
(iib) Indebtedness owing under outstanding on the Non-Convertible Credit Facility Loan Documents Closing Date and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereof;
(iii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreementlisted on Schedule 7.03(b);
(ivc) additional Capital Leases incurred after the Closing Date and purchase money Indebtedness in an aggregate amount not to exceed $750,000 in the aggregate at any time outstanding, and any Refinancing Indebtedness in respect of such Indebtedness; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured only by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (ii) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) other unsecured Indebtedness in an aggregate principal amount not to exceed $250,000 at any time outstanding;
(e) Indebtedness existing on August 28in respect of performance of bids, 2015 trade contracts, governmental contracts and set forth in Schedule 9.01 leases (other than Indebtedness for borrowed money), statutory obligations, surety, stay, indemnity, customs and appeal bonds, performance bonds and other obligations of the Non-Convertible Credit Facility Agreement; provided thata like nature (including those to secure health, safety and environmental obligations), and, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) accounts payable to trade creditors for goods and services and current operating liabilities (not the result letters of the borrowing of money) credit in respect thereof, incurred in the ordinary course of such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(viif) non-recourse Indebtedness incurred by the Borrower or any of its Subsidiaries to finance the payment of insurance premiums of such Person;
(g) Indebtedness owed to any Person providing worker’s compensation, unemployment insurance and other social security legislation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any of its Subsidiaries incurred in connection with such Person providing such benefits or insurance pursuant to customary reimbursement or indemnification obligations to such Person;
(h) to the extent constituting Indebtedness, each of the Investments permitted pursuant to Section 7.02;
(i) reimbursement obligations owed to banks and financial institutions with respect to credit card services in an aggregate amount at any one time not exceeding $200,000;
(j) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured the Borrower and subordinated to the Obligations on terms satisfactory to Loan Parties under the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor Novelion Intercompany Loan Agreement in an aggregate principal amount not exceeding of $1,150,000 36,829,803 (or after giving effect to the Equivalent Amount Permitted Uses) plus any paid-in-kind interest in other currenciesaccordance with the terms thereof) at any time;and subject to the Novelion Subordination Agreement; provided¸ that no Subsidiaries of the Borrower shall guaranty such Indebtedness unless such Subsidiaries also guaranty the Obligations; and
(ixk) normal course Indebtedness consisting of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds accounts payable incurred in the ordinary course of business and of a type and amount consistent with past practices of due for more than 120 days after its stated due date (except for accounts payable contested in good faith) which do not in the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securities750,000.
Appears in 2 contracts
Samples: Bridge Credit Agreement (Novelion Therapeutics Inc.), Bridge Credit Agreement (Novelion Therapeutics Inc.)
Indebtedness. Such Obligor will not, and will not permit any of its Subsidiaries to, createCreate, incur, assume or permit suffer to exist any Indebtedness, whether directly Indebtedness by Parent or indirectlyBorrower, except:
(ia) Indebtedness under the ObligationsLoan Documents;
(iib) Indebtedness owing evidenced by the Senior Credit Agreement or the other Senior Loan Documents in aggregate principal amount not to exceed the amount permitted under the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all Subordination Agreement, in each case so long as such Indebtedness shall not exceed at any time the sum of $35,000,000 is permitted and the amount of interest thereon compounded and added subject to the principal thereofSubordination Agreement;
(iiic) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness guarantees thereof existing on August 28, 2015 the Closing Date and set forth in Schedule 9.01 7.03 and extensions, renewals and replacements of the Non-Convertible Credit Facility Agreement; provided that, in each case, any such Indebtedness is subordinated with Indebtedness that does not increase the outstanding principal amount thereof (without giving effect to the Obligations on terms satisfactory accrued interest, fees or transaction costs with respect to the Required Holderssuch Indebtedness);
(vd) accounts payable to trade creditors for goods Indebtedness in respect of overdrawn checks, drafts and services and current operating liabilities (not the result of the borrowing of money) incurred similar instruments arising in the ordinary course of such Obligor’s or any of its Subsidiaries’ business in accordance with customary terms and paid maintaining deposit accounts (if repaid within the specified time, unless contested in good faith by appropriate proceedings and reserved for in accordance with GAAPtwo (2) Business Days);
(vie) Indebtedness consisting of guarantees resulting from arising in connection with endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries deposit in the ordinary course of business;
(viif) Indebtedness of any Obligor owed to any Person providing workers’ compensation, health, disability or other Obligor; provided thatemployee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds case incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiariesbusiness;
(xiig) obligations Indebtedness as an account party in respect of netting servicesperformance bonds, overdraft protections bid bonds, appeal bonds, surety bonds and other similar cash management products for deposit accountsobligations, in each case provided in the ordinary course of business;
(xiiih) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a)The BCC Notes; and
(i) After the Completion Date, in an aggregate amount not to exceed at any time $5,750,000other Indebtedness; provided provided, that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of such other Indebtedness does not exceed $10,000,000 at any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securitiestime outstanding.
Appears in 2 contracts
Samples: Second Amended and Restated Second Lien Credit Agreement (Beneficient Co Group, L.P.), Subordination Agreement (Beneficient Co Group, L.P.)
Indebtedness. Such Obligor will not, and will not permit any of its Subsidiaries to, createCreate, incur, assume or permit suffer to exist any Indebtedness, whether directly or indirectly, except:
Indebtedness (exclusive of trade debt) except in respect of (i) the Obligations;
; (ii) Indebtedness owing under owed by one Loan Party to another Loan Party; (iii) Capital Financing Indebtedness; provided, that, the Non-Convertible Credit Facility Loan Documents and total amount of all Indebtedness incurred pursuant to this clause (iii) at any time outstanding shall not exceed $5,000,000; (iv) Indebtedness incurred in connection with Permitted Refinancings thereof; provided that the Investments, (v) unsecured Indebtedness in an aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time not to exceed $500,000, (vi) Indebtedness existing on the sum Restatement Effective Date and identified on Schedule 7.8, (vii) Permitted Subordinated Debt in an aggregate principal amount not to exceed $5,000,000 (which amount, for the avoidance of $35,000,000 doubt, shall not include any Permitted Xxxxxxx Xxxxxx Investment constituting Indebtedness and the amount of interest thereon compounded and added any Indebtedness between Loan Parties), and, to the extent not exceeding, in principal thereof;
(iii) Indebtedness owing under amount, the Convertible Credit Facility Maximum Principal Amount of Revolving Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter Debt (as defined in the Convertible Credit Facility Intercreditor Agreement);
, Indebtedness under the Revolving Loan Documents, (ivviii) Indebtedness existing on August 28arising from the endorsement of instruments for deposit, 2015 and set forth the honoring by a bank or other institution of a check, draft or similar instrument drawn against insufficient funds, so long as the same is covered within 5 Business Days, or consisting of obligations in Schedule 9.01 respect of the Non-Convertible Credit Facility Agreement; provided thatcash management services or overdraft protection, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) 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 such Obligor’s or any of its 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;
(viix) Indebtedness consisting owing to any insurance company in connection with the financing of guarantees resulting from endorsement of negotiable instruments for collection any insurance premiums permitted by any Obligor or any of its Subsidiaries such insurance company in the ordinary course of business;
, (viix) Indebtedness arising as an account party in respect of trade letters of credit issued in the ordinary course of business, (xi) unsecured Indebtedness arising under Hedge Agreements entered into for bona fide hedging purposes and not for speculation, (xii) refinancings of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, foregoing Indebtedness which do not increase the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations and are on terms (including for pricing) not less favorable to the applicable Loan Party than the existing Indebtedness being refinanced, (xiii) any earnout or other similar deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, payment obligations incurred in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior Permitted Acquisition to the incurrence of any such Indebtedness under this extent permitted by Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
7.7 and (xiv) Indebtedness approved in advance in writing by Permitted Xxxxxxx Xxxxxx Investments to the Holders of at least a majority in aggregate principal amount of the outstanding Securitiesextent constituting Indebtedness.
Appears in 2 contracts
Samples: Term Loan and Security Agreement (Boot Barn Holdings, Inc.), Term Loan and Security Agreement (Boot Barn Holdings, Inc.)
Indebtedness. Such Obligor will not, and will not permit any of its Subsidiaries to, createCreate, incur, assume assume, permit, guarantee, or permit to exist any Indebtednessotherwise become or remain, whether directly or indirectly, liable with respect to any Indebtedness, except:
(ia) Indebtedness evidenced by this Agreement, together with Indebtedness to issuers of letters of credit that are the Obligationssubject of L/C Undertakings;
(iib) Indebtedness owing set forth on Schedule 7.1;
(c) Permitted Purchase Money Indebtedness;
(d) Subordinated Indebtedness in an aggregate amount not to exceed $2,000,000 outstanding at any one time;
(e) unsecured Indebtedness incurred by any Borrower in the ordinary course of business for borrowed money, in an aggregate amount not in excess of $2,000,000;
(f) Acquired Indebtedness in an amount not to exceed $5,000,000 outstanding at any one time;
(g) Indebtedness not otherwise permitted under this Section 7.1 in an aggregate amount outstanding at any time less than or equal to $500,000;
(h) Indebtedness incurred by GCS (including such Indebtedness assumed in connection with the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereofAmerican Music Acquisition) to purchase musical instruments from trade creditors on extended terms; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed $7,500,000 at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereofoutstanding;
(iiii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at intercompany indebtedness owed from one Borrower to any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement)other Borrower;
(ivj) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) 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 such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for deposit or collection by any Obligor or any of its Subsidiaries similar transactions in the ordinary course of business;
(viik) Indebtedness from MCI to any Borrower to the extent permitted under clause (g) of the definition of Permitted Investments; and
(l) refinancings, renewals, or extensions of Indebtedness permitted under clauses (b) through (j) of this Section 7.1 (and continuance or renewal of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viiiPermitted Liens associated therewith) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that so long as: (i) if securedthe terms and conditions of such refinancings, renewals, or extensions do not materially impair the collateral therefor consists solely prospects of repayment of the assets being financedObligations by Borrowers, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount net cash proceeds of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnificationrefinancings, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition)renewals, or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, extensions do not result in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred an increase in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior Indebtedness so refinanced, renewed, or extended, (iii) such refinancings, renewals, refundings, or extensions do not result in a shortening of the average weighted maturity of the Indebtedness so refinanced, renewed, or extended, (iv) to the incurrence extent that Indebtedness that is refinanced, renewed, or extended was subordinated in right of any such payment to the Obligations, then the subordination terms and conditions of the refinancing, renewal, or extension Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of must be at least a majority in aggregate principal amount of as favorable to the outstanding SecuritiesLender Group as those applicable to the refinanced, renewed, or extended Indebtedness, and (v) if such refinancing, renewal, refunding, or extension involves the Senior Notes, such refinancing, renewal, refunding, or extension also complies with Section 7.8(c).
Appears in 2 contracts
Samples: Loan and Security Agreement (Guitar Center Inc), Loan and Security Agreement (Guitar Center Inc)
Indebtedness. Such Obligor The Borrower will not, and will not permit any of its Subsidiaries to, create, incur, assume or permit to exist any Indebtedness, whether directly or indirectly, exceptother than:
(ia) Indebtedness in respect of the Obligations;
(iib) Indebtedness owing of Borrower and the Guarantors under the Non-Convertible Credit Facility Loan Documents First Lien Notes, Pari Passu Lien Indebtedness, the Second Lien Notes and Permitted Refinancings thereof; provided that the Refinancing Indebtedness in respect of such First Lien Notes, Second Lien Notes and Pari Passu Lien Indebtedness, in an aggregate outstanding principal amount of for all such Indebtedness shall incurred or outstanding under this clause (b) not to exceed at any time (x) $451,300,000 minus (y) the sum of $35,000,000 and the aggregate principal amount of interest thereon compounded Existing Parent Notes (or any refinancing Indebtedness issued in exchange therefor that is not Indebtedness of Borrower or any Subsidiary) at such time;
(c) Indebtedness existing as of the Closing Date (other than pursuant to clause (b) of this Section 7.2.2) which is identified in Item 7.2.2(c) of the Disclosure Schedule, and added to the principal Refinancing Indebtedness in respect thereof;
(iiid) unsecured Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of moneyi) incurred in the ordinary course of business of the Borrower and its Subsidiaries (including open accounts extended by suppliers on normal trade terms in connection with purchases of goods and services which are not overdue for a period of more than 90 days or, if overdue for more than 90 days, as to which a dispute exists and adequate reserves in conformity with GAAP have been established on the books of the Borrower or such Obligor’s Subsidiary) and (ii) in respect of performance, surety or any appeal bonds provided in the ordinary course of its Subsidiaries’ business business, but excluding (in accordance with customary terms and paid within each case) Indebtedness incurred through the specified time, unless contested borrowing of money or Contingent Liabilities in good faith by appropriate proceedings and reserved for in accordance with GAAPrespect thereof;
(vie) Indebtedness consisting (i) in respect of guarantees resulting from endorsement industrial revenue bonds or other similar governmental or municipal bonds, (ii) evidencing the deferred purchase price of negotiable instruments for collection by newly acquired property or incurred to finance the acquisition of equipment of the Borrower or its Subsidiaries (pursuant to purchase money mortgages or otherwise, whether owed to the seller or a third party) used in the ordinary course of business of the Borrower or its Subsidiaries and any Obligor Indebtedness assumed in connection with such acquisition (provided that such Indebtedness is incurred within 90 days of the acquisition of such property or equipment), (iii) in respect of Capitalized Lease Liabilities and (iv) refinancing of Indebtedness referred to in clauses (i) through (iii); provided that the aggregate amount of all Indebtedness outstanding pursuant to this clause (e) shall not at any time exceed $10,000,000;
(f) Indebtedness of any Subsidiary owing to the Borrower or any other Subsidiary and Indebtedness of the Borrower owing to any Subsidiary, which Indebtedness
(i) shall, if payable to the Borrower or a Subsidiary Guarantor, and if evidenced by one or more promissory notes, such promissory notes shall be, duly executed and delivered in pledge to the Administrative Agent pursuant to a Loan Document and if payable by the Borrower or any Subsidiary Guarantor, be subordinated to the Obligations on terms and conditions reasonably acceptable to the Administrative Agent; and
(ii) if incurred by a Subsidiary that is not a Subsidiary Guarantor owing to the Borrower or a Subsidiary Guarantor, shall not (when aggregated with the amount of Investments made by the Borrower and the Subsidiary Guarantors in Subsidiaries that are not Subsidiary Guarantors under clause (e)(i) of Section 7.2.5) exceed $5,000,000 in the aggregate;
(g) Indebtedness of the Borrower and its Subsidiaries arising from letters of credit issued for the account of the Borrower or such Subsidiary by a Lender in an aggregate stated amount at any time outstanding (as determined by aggregating the stated amount of all such letters of credit and all reimbursement obligations with respect thereto) not to exceed $15,000,000;
(h) Indebtedness of a Person existing at the time such Person became a Subsidiary of the Borrower in connection with a Permitted Acquisition, but only if such Indebtedness was not created or incurred in contemplation of such Person becoming a Subsidiary, and Refinancing Indebtedness in respect thereof;
(i) Hedging Obligations entered into in the ordinary course of business and not for speculative purposes;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided that such Indebtedness is extinguished within five Business Days of its Subsidiaries incurrence;
(k) (A) obligations in respect of performance bonds, bankers’ acceptances, workers’ compensation claims, surety, bid or appeal bonds, completion guarantees and payment obligations in connection with self-insurance or similar obligations provided by the Borrower or any Subsidiary in the ordinary course of business and (B) obligations owed to (including in respect of letters of credit for the benefit of) any Person in connection with workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance provided by such Person to the Borrower or any Subsidiary pursuant to reimbursement or indemnification obligations to such Person, in each case, incurred in the ordinary course of business;
(viil) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely arising from agreements of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor Borrower or any Subsidiary of its Subsidiaries (i) the Borrower providing for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiariesobligations, in each case, incurred or assumed in connection with transactions permitted under Section 9(c)(v);the disposition of any business, assets or a Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition; and
(xim) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices other Indebtedness of the Obligors Borrower and their Subsidiaries;
its Subsidiaries (xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured than Indebtedness of any Obligor Subsidiaries that are not otherwise described in this Section 9(a), Subsidiary Guarantors owing to the Borrower or Subsidiary Guarantors) in an aggregate amount at any time outstanding not to exceed at any time $5,750,00025,000,000; provided that Issuer (A) no Indebtedness otherwise permitted by clauses (e) or (f)(ii) shall give be assumed, created or otherwise incurred if a Default has occurred and is then continuing or would result therefrom and (B) in the Holders event that an item of at least a majority in aggregate principal amount Indebtedness (or any portion thereof) meets the criteria of more than one of the outstanding Securities written notice prior types of Indebtedness described above, the Borrower, in its sole discretion, will classify such item of Indebtedness (or any portion thereof) at the time of incurrence and will only be required to include the incurrence amount and type of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount one of the outstanding Securitiesabove clauses.
Appears in 2 contracts
Samples: Credit Agreement (Reddy Ice Holdings Inc), Credit Agreement (Reddy Ice Holdings Inc)
Indebtedness. Such Obligor The Parent will not, and will not permit any of its Subsidiaries to, contract, create, incur, assume or permit suffer to exist any Indebtedness, whether directly or indirectly, exceptIndebtedness other than:
(i) Indebtedness incurred pursuant to this Agreement and the Obligationsother Credit Documents;
(ii) Indebtedness owing under of the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added Parties incurred pursuant to the principal thereof;
(iii) Indebtedness owing under the Convertible Other Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) 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 such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor Agreement in an aggregate principal amount not exceeding to exceed $1,150,000 (or the Equivalent Amount in other currencies) 508,977,536.95 at any timetime outstanding less any repayments thereof made after the Restatement Effective Date;
(ixiii) normal course Interest Rate Protection Agreements and Other Hedging Agreements in respect of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred currencies entered into in the ordinary course of business and of a type and amount consistent with past practices practices; provided that (x) in the case of Interest Rate Protection Agreements, the Obligors term thereof does not extend beyond the Maturity Date and their Subsidiaries(y) in the case of Other Hedging Agreements in respect of currencies, the term thereof does not exceed six months;
(xiiiv) obligations Intercompany indebtedness permitted pursuant to Sections 9.05(iii) and 9.05(viii); and
(v) Indebtedness evidenced by the Existing Letters of Credit (as defined in respect the Other Credit Agreement), as such Existing Letters of netting services, overdraft protections and other similar cash management products for deposit accountsCredit may be replaced from time to time;
(xiiivi) unsecured so long as no Event of Default then exists or would result therefrom, additional Indebtedness of incurred by the Parent, the Borrower or any Obligor other Credit Party that does not otherwise described in this Section 9(a), own a Collateral Vessel at the time such Indebtedness is incurred in an aggregate principal amount not to exceed $10,000,000 (or, in the case of Indebtedness in respect of letters of credit, $5,000,000) at any one time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliatesoutstanding; and
(xivvii) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding SecuritiesParent and the Subsidiaries of the Parent other than the Credit Parties incurred to finance the Financed Purchase Price of a Permitted New Vessel Acquisition; provided that the amortization of such Indebtedness shall be no greater than a straight line amortization reducing such Indebtedness to $0 upon the corresponding Vessel becoming 15 years old;
(viii) Indebtedness of the Parent under the BlueMountain Parent Indebtedness; and
(ix) Permitted 2014 Newbuilding Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement (Gener8 Maritime, Inc.), Credit Agreement (Gener8 Maritime, Inc.)
Indebtedness. Such Obligor will not, and will Borrower shall not permit any of its Subsidiaries to, create, incur, assume or suffer to exist, or permit any of its Subsidiaries to exist create, incur, assume or suffer to exist, any Indebtedness, whether directly or indirectly, except:
(ia) Indebtedness of Borrower under or pursuant to this Agreement and the Obligationsother Loan Documents;
(iib) Indebtedness owing under existing, or arising pursuant to commitments existing, on the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of date hereof, all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereof;
(iii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of 3.9, and any extensions, renewals, refundings or refinancings thereof on substantially the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on same terms or other terms satisfactory to Lender; provided, however, that neither the Required Holdersprincipal amount thereof nor the interest rate (including the manner of calculating a variable rate of interest) thereon shall be increased, nor shall the amortization schedule thereof be shortened;
(vc) accounts payable to trade creditors for goods and services and current operating Current liabilities (not the result of the borrowing of money) incurred in the ordinary course of such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type not represented by any note, bond, debenture or other instrument, and amount consistent with past practices which do not remain unpaid more than thirty (30) days after the date due or more than one hundred and fifty (150) days after the date of the Obligors corresponding invoice, whichever is longer, or if unpaid beyond that time, which are being contested in good faith and their Subsidiariesby appropriate actions and for which adequate reserves in accordance with GAAP have been established on the books of the primary obligor with respect thereto;
(xiid) obligations in respect Contingent Obligations consisting of netting services, overdraft protections and other similar cash management products (1) the indorsement by Borrower or any of its Subsidiaries of negotiable instruments payable to such Person for deposit accountsor collection in the ordinary course of business, and (2) guarantees executed by Borrower or any of its Subsidiaries with respect to Indebtedness of Borrower and its Subsidiaries otherwise permitted by this Agreement;
(xiiie) unsecured Contingent Obligations consisting of the indemnification by Borrower or any of its Subsidiaries in favor of (1) the officers, directors, employees and agents of Borrower or such Subsidiary, to the extent permissible under the corporation law of the jurisdiction in which Borrower or such Subsidiary is organized, (2) commercial banks, investment bankers and other independent consultants or professional advisors pursuant to agreements relating to the underwriting of Borrower's or such Subsidiary's securities or the rendering of banking or professional services to Borrower or such Subsidiary and (3) landlords, licensors, licensees and other parties pursuant to agreements entered into in the ordinary course of business by Borrower or such Subsidiary;
(f) Indebtedness with respect to financed insurance premiums not past due;
(g) Indebtedness of any Obligor Borrower that is owed to a Subsidiary of Borrower and that is described in clause (d) of Section 4.13; and
(h) Indebtedness that is owed to a seller of assets in a Permitted Acquisition or the Cornerstone Acquisition that (i) relates to customary post-closing adjustments with respect to accounts receivable, accounts payable and similar items typically subject to post-closing adjustments in similar transactions, and (ii) is outstanding for a period of one hundred twenty (120) days or less following the closing of such Permitted Acquisition or the Cornerstone Acquisition, as applicable;
(i) Indebtedness incurred or assumed as a part of the consideration for a Permitted Acquisition, not otherwise described in this Section 9(a)4.14, in the maximum amount of $10,000,000 per Permitted Acquisition with an aggregate amount not to exceed $30,000,000 outstanding at any one time;
(j) Any Indebtedness that Refinances the Laurus Credit Facility, so long as (i) such Indebtedness is in an aggregate principal amount not in excess of the sum of (x) $4,000,000, and (y) an amount necessary to pay any fees and expenses, including premiums and defeasance costs, related to such Refinancing; (ii) the Average Life of such Indebtedness is equal to or greater than the Average Life of the Indebtedness being Refinanced; (iii) the Stated Maturity of such Indebtedness is no earlier than the Stated Maturity of the Indebtedness being Refinanced; and (iv) the new Indebtedness shall not be senior in right of payment to the Indebtedness that is being Refinanced; provided, however, that such new Indebtedness shall not include Indebtedness of a Subsidiary that Refinances the Laurus Credit Facility.
(k) Purchase Money Debt and Capitalized Lease Obligations in an aggregate amount not to exceed $2,000,000.00 outstanding at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securitiesone time.
Appears in 2 contracts
Samples: Loan Agreement (Home Solutions of America Inc), Loan Agreement (Home Solutions of America Inc)
Indebtedness. Such Obligor will not, and will not permit any of its Subsidiaries to, createCreate, incur, assume or permit suffer to exist any Indebtedness, whether directly or indirectly, except:
(ia) Indebtedness under the ObligationsLoan Documents;
(iib) Guarantees of the Borrower or any Guarantor in respect of Indebtedness otherwise permitted hereunder of the Borrower or any other Guarantor;
(c) obligations (contingent or otherwise) of the Borrower or any of its Subsidiaries existing or arising under any Swap Contract permitted by Section 7.11;
(d) Indebtedness owing under in respect of capital leases and Synthetic Lease Obligations and Indebtedness incurred to finance the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereofacquisition, construction or improvement of any fixed or capital assets (whether or not constituting purchase money obligations) within the limitations set forth in Section 7.01(d) or Indebtedness secured by Liens referred to in Section 7.01(f); provided provided, however, that the aggregate outstanding principal amount of all such Indebtedness at any one time outstanding shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereof50,000,000;
(iiie) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount endorsements of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) accounts payable to trade creditors negotiable instruments for goods and services and current operating liabilities (not the result of the borrowing of money) incurred collection in the ordinary course of such Obligor’s or any of its 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 GAAPbusiness;
(vif) intercompany Indebtedness between the Borrower and a Subsidiary that is a Guarantor or between Subsidiaries that are Guarantors;
(g) Indebtedness of a Subsidiary of the Borrower owed to the Borrower or another Loan Party, which Indebtedness shall be pledged to the Administrative Agent pursuant to the Loan Documents and be otherwise permitted under the provisions of Section 7.02;
(h) Indebtedness consisting of guarantees resulting from endorsement obligations to pay insurance premiums;
(i) Indebtedness in respect of negotiable instruments for collection workers’ compensation claims, self-insurance obligations, bankers’ acceptance and performance and surety bonds provided by any Obligor the Borrower or any of its Subsidiaries in the ordinary course of business;
(viij) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financingPermitted Additional Debt; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does that is secured by a Junior Lien shall not exceed $2,300,000 (or the Equivalent Amount in other currencies) 300,000,000 at any time;; and
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiiik) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate principal amount not to exceed $50,000,000 at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securitiesoutstanding.
Appears in 2 contracts
Samples: Credit Agreement (Tapstone Energy Inc.), Credit Agreement (Tapstone Energy Inc.)
Indebtedness. Such Obligor will Each Borrower and Guarantor shall not, and will shall not permit any of its Subsidiaries Subsidiary to, incur, create, incurassume, assume become or be liable in any manner with respect to, or permit to exist exist, any Indebtedness, whether or guarantee, assume, endorse, or otherwise become responsible for (directly or indirectly), the Indebtedness, performance, obligations or dividends of any other Person, except:
(ia) the Obligations;
(iib) the Indebtedness owing under of Associated and its Subsidiaries in respect of the Non-Convertible Credit Facility Loan Documents Opco Notes as in effect on the date hereof;
(c) purchase money Indebtedness (including Capital Leases) arising after the date hereof to the extent secured by purchase money security interests in Equipment (including Capital Leases) and Permitted Refinancings thereof; provided that purchase money mortgages on Real Property or in respect of industrial revenue bonds or other similar government or municipal bonds (subject to such intercreditor and subordination arrangements as Agent may reasonably required) not to exceed $7,500,000 in the aggregate at any time outstanding principal amount so long as such security interests and mortgages do not apply to any property of all such Borrower, Guarantor or Subsidiary other than the Equipment or Real Property so acquired, and the Indebtedness secured thereby does not exceed the cost of the Equipment or Real Property so acquired, as the case may be;
(d) guarantees by any Borrower or Guarantor of the Obligations of the other Borrowers or Guarantors in favor of Agent for the benefit of Lenders;
(e) the Indebtedness of any Borrower or Guarantor to any other Borrower or Guarantor arising after the date hereof pursuant to loans by any Borrower or Guarantor permitted hereunder;
(f) unsecured Indebtedness of any Borrower or Guarantor arising after the date hereof to any third person (but not to any other Borrower or Guarantor); provided, that, each of the following conditions is satisfied as determined by Agent: (i) such Indebtedness shall be on terms and conditions acceptable to Agent and shall be subject and subordinate in right of payment to the right of Agent and Lenders to receive the prior indefeasible payment and satisfaction in full payment of all of the Obligations pursuant to the terms of an intercreditor agreement between Agent and such third party, in form and substance satisfactory to Agent, (ii) Agent shall have received not exceed at any time less than ten (10) days prior written notice of the sum intention of $35,000,000 and such Borrower or Guarantor to incur such Indebtedness, which notice shall set forth in reasonable detail satisfactory to Agent the amount of such Indebtedness, the person or persons to whom such Indebtedness will be owed, the interest thereon compounded rate, the schedule of repayments and added to the principal thereof;
maturity date with respect thereto and such other information as Agent may request with respect thereto, (iii) Indebtedness owing under the Convertible Credit Facility Loan Documents Agent shall have received true, correct and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount complete copies of all agreements, documents and instruments evidencing or otherwise related to such Indebtedness, (iv) except as Agent may otherwise agree in writing, all of the proceeds of the loans or other accommodations giving rise to such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added be paid to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated Agent for application to the Obligations on terms satisfactory in such order and manner as Agent may determine or at Agent’s option, to be held as cash collateral for the Required Holders;
Obligations, (v) 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 such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) no event shall the aggregate outstanding principal amount of such Indebtedness does not incurred during the term of this Agreement exceed $2,300,000 20,000,000, (vi) as of the date of incurring such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or have occurred, (vii) such Borrower and Guarantor shall not, directly or indirectly, (A) amend, modify, alter or change the Equivalent Amount terms of such Indebtedness or any agreement, document or instrument related thereto; except, that, such Borrower or Guarantor may, after prior written notice to Agent, amend, modify, alter or change the terms thereof so as to extend the maturity thereof, or defer the timing of any payments in respect thereof, or to forgive or cancel any portion of such Indebtedness (other currenciesthan pursuant to payments thereof), or to reduce the interest rate or any fees in connection therewith, or (B) at redeem, retire, defease, purchase or otherwise acquire such Indebtedness (except pursuant to regularly scheduled payments permitted herein), or set aside or otherwise deposit or invest any timesums for such purpose, and (viii) Borrowers and Guarantors shall furnish to Agent all notices or demands in connection with such Indebtedness either received by any Borrower or Guarantor or on its behalf promptly after the receipt thereof, or sent by any Borrower or Guarantor or on its behalf concurrently with the sending thereof, as the case may be;
(xg) obligations Indebtedness of Borrower arising after the date hereof issued in exchange for, or the proceeds of which are used to extend, refinance, replace or substitute for Indebtedness permitted under Sections 10.3(b) (the “Refinancing Indebtedness”); provided, that, as to any Obligor such Refinancing Indebtedness, each of the following conditions is satisfied: (i) Agent shall have received not less than ten (10) Business Days’ prior written notice of the intention to incur such Indebtedness, which notice shall set forth in reasonable detail satisfactory to Agent, the amount of such Indebtedness, the schedule of repayments and maturity date with respect thereto and such other information with respect thereto as Agent may reasonably request, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all agreements, documents and instruments evidencing or otherwise related to such Indebtedness, as duly authorized, executed and delivered by the parties thereto, (iii) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity and a final maturity equal to or greater than the Weighted Average Life to Maturity and the final maturity, respectively, of the Indebtedness being extended, refinanced, replaced, or substituted for, (iv) the Refinancing Indebtedness shall rank in right of payment no more senior than, and be at least as subordinated (if subordinated) to, the Obligations as the Indebtedness being extended, refinanced, replaced or substituted for, (v) the Refinancing Indebtedness shall not include terms and conditions with respect to Borrowers and Guarantors which are more burdensome or restrictive in any material respect than those included in the Indebtedness so extended, refinanced, replaced or substituted for, taken as a whole, so that in view of all of the terms and conditions of the Refinancing Indebtedness, such terms and conditions are more favorable to Borrowers and Guarantors; except, that, the interest rate of the Indebtedness replacing Indebtedness under Section 10.3(b) may be greater than the interest rate applicable to the Indebtedness being replaced if, in addition to the other requirements of this Section 10.3(g), the Fixed Charge Coverage Ratio of Parent and its Subsidiaries (ion a consolidated basis) shall have been not less than 1.2:1.0 with respect to the twelve (12) consecutive calendar month period ending as of the date of the incurrence of such Refinancing Indebtedness and shall be not less than 1.2:1.0 after giving effect thereto, (vi) as of the date of incurring such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (vii) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of the Indebtedness so extended, refinanced, replaced or substituted for indemnification, adjustment (plus the lesser of purchase price or similar obligations (including for A) the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance stated amount of any Obligor premium or any of its Subsidiaries, in each case, other payment required to be paid in connection with transactions such refinancing pursuant to the terms of the Indebtedness being refinanced and (B) the amount of premium or other payment actually paid at such time to refinance the Indebtedness, plus, in either case, the amount of reasonable expenses of Borrowers and Guarantors incurred in connection with such refinancing), (viii) the Refinancing Indebtedness shall be secured by substantially the same assets, provided, that, such security interests (if any) with respect to the Refinancing Indebtedness shall have a priority no more senior than, and be at least as subordinated, if subordinated (on terms and conditions substantially similar to the subordination provisions applicable to the Indebtedness so extended, refinanced, replaced or substituted for or as is otherwise acceptable to Agent) as the security interest with respect to the Indebtedness so extended, refinanced, replaced or substituted for, and (ix) Borrowers and Guarantors may only make payments of principal, interest and fees, if any, in respect of such Indebtedness to the extent such payments would have been permitted under Section 9(c)(v)hereunder in respect of the Indebtedness so extended, refinanced, replaced or substituted for;
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiiih) unsecured Indebtedness of any Obligor not otherwise described a Borrower or Guarantor in this Section 9(a)respect of seller notes on terms and acceptable to Agent, in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give so long as the Holders of at least a majority in aggregate principal amount of seller notes outstanding, when aggregated with the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of Indebtedness outstanding pursuant to clause (i), below, of this Section 10.3, does not at any time exceed $8,000,000;
(i) Indebtedness of a Person existing at the time such Person became a Subsidiary of a Borrower pursuant to a transaction permitted hereunder (such Person, an “Acquired Person”), together with all Indebtedness assumed by a Borrower or Guarantor in connection with any Permitted Acquisition, in respect only of Real Property and capitalized leases which, when aggregated with the aggregate principal amount of Indebtedness outstanding Securities.pursuant to clause (h), above, of this Section 10.3, does not at any time exceed $8,000,000; provided, that, such Indebtedness shall not have been created or incurred in contemplation of such Person becoming a Subsidiary or in contemplation of such Permitted Acquisition;
Appears in 2 contracts
Samples: Loan and Security Agreement (Associated Materials, LLC), Loan and Security Agreement (Amh Holdings, LLC)
Indebtedness. Such Obligor will not, and will not permit Neither the Company nor any of its Subsidiaries to, shall create, incur, assume or permit suffer to exist any Indebtedness except for the following (each of which shall be calculated without duplication):
(a) Indebtedness under the Notes;
(b) Non-Recourse Indebtedness;
(c) Recourse Indebtedness of the Company and its Subsidiaries which is secured by Property of the Company or its Subsidiaries; provided, whether directly or indirectlyhowever, except:
that (i) as of the Obligations;
(ii) Indebtedness owing under the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that Closing through December 31, 2000, the aggregate outstanding principal amount of all such Recourse Indebtedness shall not exceed at any time the sum of $35,000,000 and the aggregate principal amount of interest thereon compounded such Recourse Indebtedness outstanding as of the Closing; and added to the principal thereof;
(iiiii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that after December 31, 2000, the aggregate outstanding principal amount of all such Recourse Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement)15,000,000;
(ivd) Recourse Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility AgreementCompany and its Subsidiaries which is not secured by Property of the Company or its Subsidiaries; provided thatprovided, in each casehowever, that the aggregate principal amount of all such Recourse Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holdersshall not exceed $33,000,000 at any time;
(ve) accounts payable Indebtedness of a Subsidiary owed to trade creditors the Company or any other Subsidiary;
(f) Indebtedness arising in connection with Swaps entered into by the Company or its Subsidiaries for goods and services and current operating liabilities the sole purpose of fixing or hedging (not i) interest rate risk with respect to any floating or fixed rate Indebtedness permitted by the result terms of this Agreement to be outstanding or (ii) the borrowing value of money) incurred foreign currencies purchased or received by the Company or its Subsidiaries in the ordinary course of business, provided that all such Obligor’s arrangements are entered into in connection with bona fide fixing or any of its Subsidiaries’ business in accordance with customary terms hedging operations and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved not for in accordance with GAAPspeculation;
(vig) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of the Company and its Subsidiaries for trade accounts payable, provided that (i) such accounts arise in the ordinary course of business and (ii) no material part of such account is more than 90 days past due (unless subject to a bona fide dispute for which adequate reserves have been established);
(h) Indebtedness of the Company and its Subsidiaries arising under workers' compensation, unemployment insurance and social security laws arising in the ordinary course of business;
(viii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to Company arising under the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its AffiliatesWarrants; and
(xivj) Subordinated Indebtedness of the Company and its Subsidiaries to any other Person. With respect to the Recourse Indebtedness set forth in Section 10.8(d) above, the Company will take, or cause to be taken, all actions necessary to ensure that the obligations of the Company under the Notes are and continue to rank at least pari passu in right of payment with such Recourse Indebtedness (including without limitation (a) Indebtedness approved in advance in writing by arising under the Holders of at least a majority in aggregate principal amount of the outstanding Securities.East
Appears in 2 contracts
Samples: Note Purchase Agreement (Kennedy Wilson Inc), Note Purchase Agreement (Kennedy Wilson Inc)
Indebtedness. Such Obligor will not, and will The Borrower shall not permit any of its Subsidiaries to, create, incur, assume or permit suffer to exist any Indebtedness, whether directly Indebtedness or indirectlyany other Contingent Obligation, except:
(ia) Indebtedness under the ObligationsLoan Documents;
(iib) the Terminating Indebtedness, provided that the Terminating Indebtedness owing is repaid in full on or before the Closing Date;
(c) Contingent Obligations in respect of obligations and liabilities under the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; leases for coal cars supplied in connection with Rodemacher Unit No. 2, provided that the aggregate outstanding principal amount of all such Indebtedness thereof shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereof;
(iii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) 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 such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) 13,000,000 at any time;
(ixd) normal course Contingent Obligations in respect of business equipment financingobligations and liabilities of the Utility;
(e) other Contingent Obligations in respect of Permitted Hedge Agreements, provided that the aggregate amount of such Contingent Obligations under this clause (e) shall not exceed $20,000,000 at any time; and
(f) other Indebtedness (including Indebtedness of the Borrower to any Subsidiary) and other Contingent Obligations, in an amount which when aggregated with the Indebtedness under the Loan Documents shall not exceed $425,000,000 at any time, provided that (i) if securednot more than $325,000,000 thereof shall constitute Indebtedness or Contingent Obligations which is pari passu with the Indebtedness under the Loan Documents, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) any such Indebtedness or Contingent Obligations which is not pari passu with the Indebtedness under the Loan Documents (including Contingent Obligations in respect of the Midstream Credit Facility) shall be unsecured and subordinated to the Indebtedness of the Borrower under the Loan Documents in a manner consistent with the Approved Subordination Terms and otherwise satisfactory to the Administrative Agent and (iii) the aggregate outstanding principal amount of such Indebtedness does and Contingent Obligations under clause (f)(i) that is secured shall not exceed $2,300,000 (or the Equivalent Amount in other currencies) 25,000,000 at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding Securities.
Appears in 2 contracts
Samples: 364 Day Credit Agreement (Cleco Corp), 364 Day Credit Agreement (Cleco Power LLC)
Indebtedness. Such Obligor will not, and will not permit any of its Subsidiaries to, createCreate, incur, assume or permit suffer to exist any Indebtedness, whether directly or indirectly, except:
(ia) Indebtedness under the ObligationsLoan Documents;
(iib) Indebtedness owing under of the Non-Convertible Credit Facility Loan Documents Borrower and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereof;
(iii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and its Subsidiaries set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders8.03;
(vc) accounts payable to trade creditors for goods and services and current operating liabilities intercompany Indebtedness permitted under Section 8.02;
(not the result d) obligations (contingent or otherwise) of the borrowing of moneyBorrower or any Subsidiary existing or arising under any Swap Contract, provided that (i) incurred 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 Obligor’s 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 of provision exonerating the non-defaulting party from its Subsidiaries’ business in accordance with customary terms and paid within obligation to make payments on outstanding transactions to the specified time, unless contested in good faith by appropriate proceedings and reserved for in accordance with GAAPdefaulting party;
(vie) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in the ordinary course of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor Priority Debt in an aggregate principal amount not exceeding to exceed $1,150,000 (or the Equivalent Amount in other currencies) 7,500,000 at any timetime outstanding;
(ixf) normal course purchase money Indebtedness (including obligations in respect of business equipment financing; Capital Leases or Synthetic Leases) hereafter incurred by the Borrower or any of its Subsidiaries to finance the purchase of fixed assets, and renewals, refinancings and extensions thereof, provided that (i) if secured, the collateral therefor consists solely total of the assets being financed, the products and proceeds thereof and books and records related thereto, and all such Indebtedness for all such Persons taken together shall not exceed an aggregate principal amount of $1,000,000 at any one time outstanding; (ii) such Indebtedness when incurred shall not exceed the aggregate outstanding 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 Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any timerefinancing;
(xg) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), Senior Notes in an aggregate principal amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates65,000,000; and
(xivh) other unsecured Indebtedness approved of the Borrower in advance in writing by the Holders of at least a majority in an aggregate principal amount of the outstanding Securitiesnot to exceed $5,000,000.
Appears in 2 contracts
Samples: Credit Agreement (Insituform Technologies Inc), Credit Agreement (Insituform Technologies Inc)
Indebtedness. Such Obligor will not, and will not permit any of its Subsidiaries toIncur, create, incur, assume or permit to exist any Indebtednessexist, whether directly or indirectly, any Indebtedness, except:
(ia) Indebtedness incurred under this Agreement and the Obligationsother Loan Documents;
(iib) Indebtedness owing under in respect of Bridge Financing;
(c) Indebtedness outstanding on the Non-Convertible Credit Facility Loan Documents date hereof and listed on Schedule 6.01(c) and Permitted Refinancings thereof;
(d) Replacement Loans;
(e) Indebtedness in respect of Purchase Money Obligations and Capital Lease Obligations and Attributable Indebtedness in respect of Sale and Leaseback Transactions and Permitted Refinancings thereof in an aggregate principal amount not to exceed $15,000,000 at any time outstanding;
(f) Indebtedness in respect of one or more revolving credit facilities in an aggregate principal amount not to exceed $22,500,000; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added be incurred prior to the principal thereofdate that, at the time of incurrence and based on the Project Schedule then in effect, is reasonably expected to be six months prior to the Opening Date;
(iiig) Indebtedness owing under of Borrower in respect of performance bonds, municipal bonds, guaranties, commercial or standby letters of credit, bankers’ acceptances, surety bonds or similar instruments issued by a Person other than Borrower for the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount benefit of all such a trade creditor of Borrower or in respect of obligations (other than obligations constituting Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of borrowed money) of Borrower incurred in the ordinary course of business, in an aggregate amount not to exceed $10,000,000 at any time outstanding; provided that in the event that Borrower enters into the revolving credit facility permitted under Section 6.01(f), such Obligor’s or any of its 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 GAAPamount shall be reduced to $5,000,000;
(vih) To the extent constituting Indebtedness of Borrower, agreements to pay service fees to professionals (including architects, engineers and designers) in furtherance of and in connection with the development of the Project, in each case to the extent such agreements and related payment provisions are reasonably consistent with commonly accepted industry practices (provided that no such agreements shall give rise to Indebtedness for borrowed money);
(i) Contingent Obligations of Borrower with respect to Indebtedness of Borrower permitted under this Section 6.01;
(j) Indebtedness consisting of guarantees resulting from endorsement endorsements of negotiable instruments for collection by any Obligor or any of its Subsidiaries deposit in the ordinary course of business;
(viik) to the extent constituting Indebtedness, agreements for the deferred payment of premiums or to finance the deferred payment of premiums owing by Borrower under any insurance policies entered into in the ordinary course of business in connection with a Permitted Business;
(l) Indebtedness of any Obligor under Hedging Agreements with respect to any other Obligorinterest rates not entered into for speculative purposes; provided thatthat such Hedging Agreements (i) relate to payment obligations on Indebtedness otherwise permitted to be incurred by the Loan Documents and (ii) the notional principal amount of such Hedging Agreements at the time incurred does not exceed the principal amount of the Indebtedness to which such Hedging Agreements relate;
(m) 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 five business days of its incurrence;
(n) Indebtedness arising from agreements of the Borrower providing for indemnification, adjustments of purchase price or similar obligations, in each case, such Indebtedness is unsecured and subordinated to incurred or assumed in connection with the Obligations on terms satisfactory to the Required Holdersacquisition or disposition of any business, assets or a Subsidiary;
(viiio) Guarantees the guarantee by any Obligor the Borrower of Indebtedness of any other Obligor a Restricted Subsidiary that was permitted to be incurred by a provision of Section 6.01 in the First Lien Financing Agreement;
(p) additional Indebtedness of Borrower in an aggregate principal amount not exceeding to exceed $1,150,000 (or the Equivalent Amount in other currencies) 10,000,000 at any time;time outstanding; and
(ixq) normal course Indebtedness of business equipment financingBorrower incurred pursuant to the Existing First Lien Financing Agreement and the SLS Lender Loan Agreement, and after the Final Completion Date subject to clause (y) in the proviso below, other First Lien Financing and other Qualified Additional Financings (other than that Qualified Additional Financing described on Schedule 6.01(c) as “Qualified Additional Financing Equity” which may be refinanced prior to the Final Completion Date) and Permitted Refinancings thereof; provided that notwithstanding anything to the contrary in clauses (a) through (q) of this Section 6.01, (x) to the extent that any lender (or agent for lenders) possessing a Lien on the SLS Las Vegas that is senior to the SLS Las Vegas Mortgage, but only to the extent such lender or agent is an Institutional Lender, waives any default, or consents to any actions of Borrower that would cause a default, with respect to the substantively similar and corresponding sections of such senior secured financing agreements to clauses (e), (f), (g) and (p), Lender shall be deemed to have waived such default, or consented to such actions of Borrower, and (y) Borrower shall not incur, create, or assume, directly or indirectly, such Indebtedness if the incurrence of such Indebtedness (including a Permitted Refinancing of such Indebtedness) would (A) result in Total Indebtedness Secured by All SLS Las Vegas Mortgages being in excess of the greater of (1) the outstanding amount of Total Indebtedness Secured by All SLS Las Vegas Mortgages immediately prior to the incurrence of such Indebtedness, and (2) 75% of the greater of (I) the cost of the Project and (II) the appraised fair market value of the Project, or (B) result in Indebtedness that is secured by a lien that is senior to the SLS Las Vegas Mortgage other than the Indebtedness described in (i) if securedSection 6.01(b), the collateral therefor consists solely of the assets being financed(d), the products (e) and proceeds thereof and books and records related thereto(f), and (ii) the aggregate outstanding principal amount of any First Lien Financing, provided, such Indebtedness does First Lien Financing shall not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured 175,000,000. Any Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior is subordinate to the incurrence Obligations shall be subject to the terms of any such Indebtedness under this Section 9(a)(xiii) owing an Intercreditor Agreement reasonably satisfactory to any director or executive officer of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding SecuritiesLender.
Appears in 2 contracts
Samples: Loan Agreement, Loan Agreement (Stockbridge/Sbe Investment Company, LLC)
Indebtedness. Such Obligor will not, and will not permit any of its Subsidiaries to, createCreate, incur, assume or permit suffer to exist any Indebtedness, whether directly or indirectly, exceptother than:
(ia) the ObligationsIndebtedness under this Agreement;
(iib) Indebtedness owing under outstanding on the Non-Convertible Credit Facility Loan Documents date hereof or pursuant to lines of credit in effect on the date hereof and Permitted Refinancings described on Schedule 8.1(b), together with all extensions, renewals and refinancings thereof; provided that provided, however, any such extensions, renewals and refinancings shall not, without the aggregate outstanding principal amount written consent of all the Lender, increase any such Indebtedness shall not exceed at any time or modify the sum terms of $35,000,000 and the amount of interest thereon compounded and added said Indebtedness on terms less favorable to the principal thereofmaker or obligor;
(iiic) Indebtedness owing under Purchase money indebtedness to the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; extent secured by a Lien permitted by Section 8.2(b) provided that the aggregate outstanding principal amount of all such Indebtedness shall purchase money indebtedness does not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);20,000,000.
(ivd) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) accounts payable to trade creditors for goods and services and Unsecured current operating liabilities (not the result of the borrowing of moneyother than liabilities for borrowed money or liabilities evidenced by promissory notes, bonds or similar instruments) incurred in the ordinary course of such Obligor’s business (whether now outstanding or any of its Subsidiaries’ business in accordance with customary terms hereafter arising or incurred) and paid within the specified timeeither (i) not more than thirty (30) days past due, unless contested or (ii) being disputed in good faith by appropriate proceedings with reserves for such disputed liability maintained in conformity with GAAP and reserved for Indebtedness in accordance with GAAP;
(vi) Indebtedness consisting the nature of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries contingent repayment obligations arising in the ordinary course of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; with respect to deposits and down payments;
(e) The Intercompany Loans described on Schedule 6.22 and any other loans between Consolidated Companies not exceeding individually at any time the amount of $1,000,000 and in the aggregate at any time the amount of $2,000,000 (excluding Intercompany Loans listed on Schedule 6.22)
(f) Any Intercompany Loans with Decus Holding (UK), Limited (UK), a London based company provided that the amount of such loans may not at any one time exceed the principal amount of $10,000,000.
(g) Unsecured, Subordinated Debt, not to exceed an aggregate amount of $25,000,000, and other Subordinated Debt in form and substance acceptable to the Lender and evidenced by its written consent thereto;
(h) Unsecured Indebtedness without any limitation of amount provided that the maturity of said Indebtedness is longer than the maturity of the Facility;
(i) if secured, Unsecured Indebtedness due under the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount 2004 Note Offering not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of $200,000,000 and unsecured Indebtedness due under the outstanding Securities written notice prior 2006 Note Offering not to exceed at any time the incurrence aggregate principal amount of any such $200,000,000;
(j) Guaranteed Indebtedness under this Section 9(a)(xiiiof the Company for Insurance Company Payables;
(k) owing to any director Guarantee of operating leases of Subsidiaries entered into by the Subsidiary in the normal and ordinary course of business, including operating leases for places of business and for equipment used in or executive officer of Issuer or any of its Affiliatesin connection with that business; and
(xivl) Indebtedness approved in advance in writing (including any refinancings thereof) up to $100,000,000 of principal incurred by the Holders of at least a majority in aggregate principal amount Company for the purpose of the outstanding SecuritiesArrowhead Acquisition and, with respect to which, said indebtedness has payment terms comparable to those of the Term Loan, unless otherwise agreed to by the Lender in its discretion, and, further, the holder of said other indebtedness enters into an inter-creditor agreement with the Lender on terms acceptable to both parties.
Appears in 2 contracts
Samples: Revolving and Term Loan Agreement, Revolving and Term Loan Agreement (Brown & Brown Inc)
Indebtedness. Such Obligor will notNeither the Parent, and will not permit the Borrower, nor any Property Subsidiary (at such time as it owns an Acceptable Unencumbered Property in the Unencumbered Pool) shall, without the prior written consent of its Subsidiaries tothe Required Lenders, create, incur, assume assume, guarantee or permit be or remain liable, contingently or otherwise with respect to exist any Indebtedness, whether directly or indirectlyIndebtedness on a recourse basis, except:
: (a) Indebtedness of the Parent or the Borrower under this Agreement, any Bond Facility or the Term Facility; (b) Indebtedness of the Parent, the Borrower or a Subsidiary (other than a Property Subsidiary at such time as it owns an Acceptable Unencumbered Property in the Unencumbered Pool) which does not violate the provisions of Section 5.02; (c) with respect to the Parent, the Borrower or a Subsidiary (other than a Property Subsidiary at such time as it owns an Acceptable Unencumbered Property in the Unencumbered Pool), other Indebtedness solely to the extent that the creation, incurrence or assumption thereof would not result in a Default under the terms of this Agreement; and (d) with respect to the Borrower, the Parent or a Subsidiary (other than a Property Subsidiary at such time as it owns an Acceptable Unencumbered Property in the Unencumbered Pool), Indebtedness whose recourse is solely for so-called “bad-boy” acts, including without limitation, (i) failure to account for a tenant’s security deposits, if any, for rent or any other payment collected by a borrower from a tenant under the Obligations;
lease, all in accordance with the provisions of any applicable loan documents, (ii) Indebtedness owing under the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereof;
(iii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) 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 such Obligor’s fraud or a material misrepresentation made by Borrower or any Guarantor, or the holders of its Subsidiaries’ business beneficial or ownership interests 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor such Borrower or any of its Subsidiaries in the ordinary course of business;
(vii) Indebtedness of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each caseGuarantor, in connection with transactions permitted under Section 9(c)(v);
the financing evidenced by the applicable loan documents; (xiiii) contingent obligations any attempt by Borrower or any Guarantor to divert or otherwise cause to be diverted any amounts payable to the applicable lender in accordance with respect the applicable loan documents; (iv) the misappropriation or misapplication of any insurance proceeds or condemnation awards relating to performance guaranties any Real Property; (v) voluntary or involuntary bankruptcy by Borrower or any Guarantor; and surety bonds incurred in the ordinary course of business and (vi) any environmental matter(s) affecting any Real Property which is introduced or caused by Borrower or any Guarantor or any holder of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations beneficial or ownership interest in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer Borrower or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding SecuritiesGuarantor.
Appears in 2 contracts
Samples: Credit Agreement (Education Realty Operating Partnership L P), Credit Agreement (Education Realty Operating Partnership L P)
Indebtedness. Such Obligor The Borrowers will not, and nor will not they permit any of its Subsidiaries other Loan Party or Subsidiary to, create, incur, assume or permit suffer to exist any Indebtedness, whether directly except (collectively, the “Permitted Indebtedness”):
(a) Indebtedness under the Loan Documents;
(b) Senior Indebtedness;
(c) Indebtedness (contingent or indirectly, except:
otherwise) of any Loan Party arising under (i) the Obligations;
any Swap Contract with a Swap Party or (ii) Indebtedness owing under to the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereofextent approved by the Lender in advance in writing, any other Swap Contract; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereof;
(iii) Indebtedness owing under the Convertible Credit Facility obligations are entered into by a Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred Party in the ordinary course of business for the purpose of mitigating risks associated with liabilities, commitments, investments, assets or property held or reasonably anticipated by such Obligor’s Person, or any changes in the value of its Subsidiaries’ business in accordance with customary terms securities issued by such Person, and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved not for in accordance with GAAPspeculative purposes;
(vid) Indebtedness consisting in respect of guarantees performance bonds, bid bonds, appeal bonds, surety bonds and similar obligations not in connection with money borrowed, in each case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business, and in an aggregate amount issued not to exceed $2,000,000 (or such higher amount as may be approved by the Lender in writing);
(e) Indebtedness resulting from endorsement a bank or other financial institution honoring a check, draft or similar instrument in the ordinary course of negotiable instruments for collection by any Obligor business or any of its Subsidiaries arising under or in connection with cash management services in the ordinary course of business;
(viif) Indebtedness arising from or incurred with respect to Capitalized Leases, Purchase Money Security Interests or other title retention agreements and leases that are in the nature of any Obligor title retention agreements in an amount not to any other Obligor; provided that, in each case, exceed (i) if such Indebtedness is unsecured reflected in the then-current Approved Budget, the amount set forth in such Approved Budget, and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viiiii) Guarantees by any Obligor of Indebtedness of any in all other Obligor in cases, an aggregate principal amount not exceeding to exceed $1,150,000 (or the Equivalent Amount in other currencies) 2,500,000 at any time;
(ixg) normal Indebtedness set forth on Schedule 6.1;
(h) Indebtedness arising under guaranties made in the ordinary course of business equipment financing; provided that of obligations of any Loan Party (and only so long as such Person is and remains a Loan Party) which obligations are otherwise permitted hereunder;
(i) if secured, the collateral therefor consists solely subject to satisfaction of the assets being financedSTORE Sale-Leaseback Conditions, Indebtedness of Hollandia Real Estate under the products and proceeds thereof and books and records related theretoSTORE Documents;
(j) subject to satisfaction of the STORE Sale-Leaseback Conditions, Indebtedness in the form of the STORE Guaranty, but only so long as (i) Holdings is the sole guarantor under the STORE Guaranty, and (ii) the STORE Guaranty is unsecured;
(k) subject to satisfaction of the STORE Sale-Leaseback Conditions, Indebtedness arising under the STORE Letter of Credit up to an aggregate outstanding face amount not to exceed $6,825,000;
(l) other Indebtedness, but only so long as, immediately following the incurrence thereof, the aggregate principal amount of all such Indebtedness permitted under this clause (l) does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates2,000,000; and
(xivm) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding SecuritiesLoan Party to any other Loan Party.
Appears in 2 contracts
Samples: Credit Agreement (Local Bounti Corporation/De), Credit Agreement (Local Bounti Corporation/De)
Indebtedness. Such Obligor will not, The Borrower and will not permit any of its Subsidiaries to, create, incurshall not contract, assume or permit suffer to exist any IndebtednessIndebtedness (including, whether directly or indirectlywithout limitation, any Guaranties), except:
(ia) Indebtedness under the ObligationsCredit Documents;
(iib) Indebtedness owing under unsecured intercompany loans and advances from the Non-Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added Borrower to the principal thereof;
(iii) Indebtedness owing under the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) 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 such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries in and unsecured intercompany loans and advances from any of such Subsidiaries to the ordinary course Borrower or any other Subsidiaries of businessthe Borrower;
(viic) existing Indebtedness of listed on Schedule 6.13, and any Obligor to any other Obligor; provided thatsubsequent extensions, in each case, renewals or refinancings thereof so long as such Indebtedness is unsecured not increased in amount, the maturity date thereof is not made earlier in time, the interest rate per annum applicable thereto is not increased, any amortization of principal thereunder is not shortened and subordinated to the Obligations on terms satisfactory to the Required Holderspayments thereunder are not increased;
(viiid) Guarantees by any Obligor of Capitalized Lease Obligations and purchase money Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the on assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed $2,500,000 at any one time $5,750,000; outstanding;
(e) unsecured Indebtedness to a seller incurred in connection with an Acquisition, provided that Issuer shall give the Holders of at least a majority such Indebtedness is subordinated in aggregate principal amount of the outstanding Securities written notice prior payment to the incurrence Obligations hereunder as reasonably acceptable to the Agent, such Indebtedness contains covenants no more restrictive than the covenants contained in this Agreement and standstill provisions reasonably acceptable to the Agent and no payments may be made thereon if a Default or Event of Default shall have occurred and be continuing or would occur as a result of any such payment;
(f) Indebtedness under this any Interest Rate Protection Agreements entered into to protect the Borrower against fluctuations in interest rates and not for speculative purposes;
(g) Indebtedness incurred in connection with Subordinated Debt Investments not to exceed (excluding any Indebtedness permitted by Section 9(a)(xiii6.14(e)) owing in the aggregate $50,000,000, all as reasonably acceptable to any director or executive officer of Issuer or any of its Affiliatesthe Agent; and
(xivh) other Indebtedness approved not included within subsections (a) through (g) above, including, without limitation, Indebtedness assumed in advance in writing by the Holders of connection with an Acquisition, provided that such Indebtedness shall not exceed $7,500,000 at least a majority in aggregate principal amount of the outstanding Securitiesany one time outstanding.
Appears in 2 contracts
Samples: Secured Credit Agreement (Quanta Services Inc), Credit Agreement (Quanta Services Inc)
Indebtedness. Such Obligor will not, and will not permit any of its Subsidiaries to, createCreate, incur, assume or permit suffer to exist any Indebtedness, whether directly or indirectly, except:
Indebtedness (exclusive of trade debt) except in respect of (i) the Obligations;
; (ii) Indebtedness owing under owed by one Loan Party to another Loan Party; (iii) Capital Financing Indebtedness; provided, that, the Non-Convertible Credit Facility Loan Documents and total amount of all Indebtedness incurred pursuant to this clause (iii) at any time outstanding shall not exceed $5,000,000; (iv) Indebtedness incurred in connection with Permitted Refinancings thereof; provided that the Investments, (v) unsecured Indebtedness in an aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time not to exceed $500,000, (vi) Indebtedness existing on the sum Closing Date and identified on Schedule 7.8, (vii) Permitted Subordinated Debt in an aggregate principal amount not to exceed $5,000,000 (which amount, for avoidance of $35,000,000 doubt, shall not include any Permitted Xxxxxxx Xxxxxx Investment constituting Indebtedness and the amount of interest thereon compounded and added any Indebtedness between Loan Parties) and, to the extent not exceeding, in principal thereof;
(iii) Indebtedness owing under amount, the Convertible Credit Facility Maximum Principal Amount of Term Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 and the amount of interest thereon compounded and added to the principal thereof, and Indebtedness under the Fee Letter Debt (as defined in the Convertible Credit Facility Intercreditor Agreement);
(iv) Indebtedness existing on August 28under the Term Loan Documents, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) 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 such Obligor’s or any of its 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;
(viviii) Indebtedness arising from the endorsement of instruments for deposit, the honoring by a bank or other institution of a check, draft or similar instrument drawn against insufficient funds, so long as the same is covered within 5 Business Days, or consisting of guarantees resulting from endorsement obligations in respect of negotiable instruments for collection cash management services or overdraft protection, (ix) Indebtedness owing to any insurance company in connection with the financing of any insurance premiums permitted by any Obligor or any of its Subsidiaries such insurance company in the ordinary course of business;
, (viix) Indebtedness arising as an account party in respect of trade letters of credit issued in the ordinary course of business, (xi) unsecured Indebtedness arising under Hedge Agreements entered into for bona fide hedging purposes and not for speculation, (xii) refinancings of any Obligor to any other Obligor; provided that, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, foregoing Indebtedness which do not increase the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations and are on terms (including for pricing) not less favorable to the applicable Loan Party than the existing Indebtedness being refinanced, (xiii) the Xxxxxxx Earnout Payment and any other earnout or other similar deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, payment obligations incurred in connection with transactions permitted under Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Obligors and their Subsidiaries;
(xii) obligations in respect of netting services, overdraft protections and other similar cash management products for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount not to exceed at any time $5,750,000; provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior Permitted Acquisition to the incurrence of any such Indebtedness under this extent permitted by Section 9(a)(xiii) owing to any director or executive officer of Issuer or any of its Affiliates; and
7.7 and (xiv) Indebtedness approved in advance in writing by Permitted Xxxxxxx Xxxxxx Investments to the Holders of at least a majority in aggregate principal amount of the outstanding Securitiesextent constituting Indebtedness.
Appears in 2 contracts
Samples: Revolving Credit and Security Agreement (Boot Barn Holdings, Inc.), Revolving Credit and Security Agreement (Boot Barn Holdings, Inc.)
Indebtedness. Such Obligor will not, and will not permit any of its Subsidiaries toIncur, create, incur, assume or permit to exist any Indebtedness, whether directly or indirectly, except:
Indebtedness other than (i) the Obligations;
Indebtedness secured by Liens permitted under Section 7.01, (ii) Indebtedness owing under (including, without limitation, Guarantees) existing on the Non-Convertible Credit Facility Loan Documents date hereof and Permitted Refinancings listed in Schedule 7.03 annexed hereto, but not the extension, renewal or refunding thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $35,000,000 and the amount of interest thereon compounded and added to the principal thereof;
, (iii) Indebtedness owing under incurred hereunder, including without limitation the Convertible Credit Facility Loan Documents and Permitted Refinancings thereof; provided that the aggregate outstanding principal amount of all such Indebtedness shall not exceed at any time the sum of $69,095,709 Guarantees (Canadian) and the amount Guarantee of interest thereon compounded and added to the principal thereofTrademark U.S., and Indebtedness under the Fee Letter (as defined in the Convertible Credit Facility Agreement);
(iv) Indebtedness existing on August 28, 2015 and set forth in Schedule 9.01 of the Non-Convertible Credit Facility Agreement; provided that, in each case, such Indebtedness is subordinated to the Obligations on terms satisfactory to the Required Holders;
(v) accounts payable to trade creditors for goods incurred and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of such Obligor’s or any of its 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;
(vi) Indebtedness consisting of guarantees resulting deposits from endorsement of negotiable instruments for collection by any Obligor or any of its Subsidiaries customers received in the ordinary course of business;
, (v) Guarantees constituting the endorsement of negotiable instruments for deposit or collection in the ordinary course of business, (vi) purchase money Indebtedness (including Capital Lease Obligations) to finance Capital Expenditures permitted by Section 7.07 hereof provided that any Lien granted with respect to such Indebtedness is permitted by Section 7.01(e) hereof, (vii) Indebtedness of any Obligor to any other Obligor; provided thatSubordinated Indebtedness, in each case, such Indebtedness is unsecured and subordinated to the Obligations on terms satisfactory to the Required Holders;
(viii) Guarantees by any Obligor the Parent of Indebtedness of any other Obligor in an aggregate principal amount not exceeding $1,150,000 (or the Equivalent Amount in other currencies) at any time;
(ix) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed $2,300,000 (or the Equivalent Amount in other currencies) at any time;
(x) obligations of any Obligor or any of its Subsidiaries (i) for indemnification, adjustment of purchase price or similar obligations (including for the deferred purchase price of property acquired in a Permitted Acquisition), or (ii) under guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Obligor or any of its Subsidiaries, in each case, in connection with transactions subsidiary permitted under this Section 9(c)(v);
(xi) contingent obligations with respect to performance guaranties and surety bonds incurred 7.03 or trade accounts payable arising in the ordinary course of business in accordance with customary trade terms and Guarantees by a subsidiary of a type and amount consistent with past practices Indebtedness of the Obligors Parent permitted under this Section 7.03 or trade accounts payable arising in the ordinary course of business in accordance with customary trade terms but only to the extent such Indebtedness or trade accounts payable arising in the ordinary course of business in accordance with customary trade terms was incurred for the benefit of such subsidiary, (ix) other unsecured Indebtedness in the ordinary course of business not to exceed $2,000,000 at any one time outstanding, (x) interest rate and their Subsidiaries;
currency protection agreements occurring in the ordinary course of business, (xi) Indebtedness to finance insurance premiums and (xii) obligations in respect of netting services, overdraft protections and other similar cash management products intercompany Xxxxxxxxxxxx xx #0 Xxxxxxx Xxxxxx Inc. to the Canadian Borrower for deposit accounts;
(xiii) unsecured Indebtedness of any Obligor not otherwise described in this Section 9(a), in an aggregate amount working capital purposes not to exceed $Canadian 10,000,000 at any time $5,750,000; outstanding provided that Issuer shall give the Holders of at least a majority in aggregate principal amount of the outstanding Securities written notice prior to the incurrence of any such Indebtedness under this Section 9(a)(xiii) owing is pledged to any director or executive officer The Chase Manhattan Bank of Issuer or any of its Affiliates; and
(xiv) Indebtedness approved in advance in writing by the Holders of at least a majority in aggregate principal amount of the outstanding SecuritiesCanada.
Appears in 2 contracts
Samples: Credit Agreement (SLM International Inc /De), Credit Agreement (SLM International Inc /De)
