Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except: (a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents; (b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt; (c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt; (d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes; (e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1; (f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof; (g) the Comerica Debt and the Subordinated Debt; (h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i); (i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstanding.
Appears in 4 contracts
Samples: Credit Agreement (Sterling Construction Co Inc), Credit Agreement (Sterling Construction Co Inc), Credit Agreement (Sterling Construction Co Inc)
Limitation on Debt. Create(a) The Company will not, and will not permit any Restricted Subsidiary to, create, issue, incur, assume assume, guarantee or suffer in any manner become directly or indirectly liable with respect to exist or otherwise become responsible for, contingently or otherwise, the payment of (individually and collectively, to “Incur” or, as appropriate, an “Incurrence”), any Debt (including any Acquired Debt, except); provided that the Company and any Restricted Subsidiary will be permitted to Incur Debt (including Acquired Debt) if:
(a1) Indebtedness of any Credit Party after giving effect to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing Incurrence of such Debt (provided that (i) and the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount application of the original Debt outstanding proceeds thereof, on the Effective Date a pro forma basis, no Default or Event of Default would occur or be continuing; and
(less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii2) at the time of such renewal or refinancing no Default or Event of Default has occurred Incurrence and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof Incurrence of such Debt and the application of the proceeds thereof, on a pro forma basis, the Consolidated Fixed Charge Coverage Ratio for the four full fiscal quarters for which financial statements are available immediately preceding the Incurrence of such Debt, taken as one period, would be greater than 2.0 to 1.0; and provided further that, Restricted Subsidiaries that are not Guarantors may not incur Debt (iincluding any Acquired Debt) no Default except for an amount not to exceed $25.0 million at any one time outstanding that may be incurred by Restricted Subsidiaries that are not Guarantors or Event Eletson MI Parties; provided further that, notwithstanding the foregoing proviso, Eletson Finance may incur Debt in connection with serving as a co-obligor, co-issuer or guarantor of Default shall have occurred and be continuingDebt incurred by the Company or any Restricted Subsidiary that is otherwise permitted by this Section 4.09(a).
(b) Section 4.09(a) will not, and however, prohibit the following (iicollectively, “Permitted Debt”):
(1) the Incurrence by the Company or any Restricted Subsidiary (other than an Eletson MI Party) of Debt under Credit Facilities in an aggregate principal amount at any one time outstanding not to exceed $175.0 million less (without duplication) the aggregate amount of all Net Cash Proceeds of Asset Sales applied by the Company or any Restricted Subsidiary since the date of this Indenture to repay any term Debt under a Credit Facility or to repay any revolving credit Debt under a Credit Facility and effect a corresponding commitment reduction thereunder pursuant to the covenant described above under Sections 4.10 and 4.11;
(2) the Incurrence by the Issuers of Debt pursuant to (i) the Notes issued on the Closing Date, (ii) PIK Notes issued in respect thereof (and PIK Notes issued in respect of such PIK Notes) and the Incurrence by the Guarantors of Guarantees of the Notes described in the foregoing clauses (i) and (ii);
(3) any Debt of the Company or any Restricted Subsidiary (other than Debt described in another clause of Section 4.09(b)) outstanding on the Closing Date;
(4) the Incurrence by the Company or any Restricted Subsidiary of intercompany Debt between the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries; provided that:
(i) if the obligor of such Debt is the Company or a Guarantor, such Debt is (x) unsecured and (y) it is expressly subordinated in right of payment to the prior payment in full in cash (whether upon Stated Maturity, acceleration or otherwise) and the performance in full of its obligations under the Notes or its Guarantee, as the case may be;
(ii) (x) any disposition, pledge or transfer of any such Debt to any Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) and (y) any transaction pursuant to which any Restricted Subsidiary that has Debt owing to the Company or another Restricted Subsidiary ceases to be a Restricted Subsidiary, will, in each case, be deemed to be an Incurrence of such Debt not permitted by this clause (4); and
(iii) no Debt may be incurred by any Person (other than an Eletson MI Party) pursuant to this clause (4) that is owed to the Company, Eletson Finance or any Restricted Subsidiary that is not a Guarantor.
(5) the Incurrence by the Company or any Restricted Subsidiary of Debt arising under any appeal and reimbursement obligation entered into in respect of any judgment not constituting an Event of Default;
(6) the Incurrence by the Company or any Restricted Subsidiary (other than an Eletson MI Party) of Debt represented by Capitalized Lease Obligations, mortgage financings, purchase money obligations or other Debt Incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property or assets, in each case, Incurred for the purpose of financing all or any part of the purchase price, lease expense or cost of construction or improvement of property, plant or equipment used in the business of the Company or any such Restricted Subsidiary (including any reasonable related fees or expenses Incurred in connection with such acquisition or development) (and any Permitted Refinancing Debt with respect to such assets); provided that the principal amount of such Debt so Incurred at any one time outstanding shall not in the aggregate exceed $102.0 million;
(7) the Incurrence by the Company or any Restricted Subsidiary of Debt arising from agreements providing for guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock, other than guarantees or similar credit support given by the Company or any Restricted Subsidiary of Debt Incurred by any Person acquiring all or any portion of such assets for the type described purpose of financing such acquisition; provided that the maximum aggregate liability in respect of all such Debt permitted pursuant to this clause (cg) which is set forth on Schedule 8.1 hereof) shall not will at no time exceed $5,000,000the net proceeds, and any renewals or refinancings including non-cash proceeds (the Fair Market Value of such Debt on terms substantially the same or better than those in effect non-cash proceeds being measured at the time of received and without giving effect to any subsequent changes in value), actually received from the original incurrence sale of such Debtassets;
(d) 8) the Incurrence by the Company or any Restricted Subsidiary of Debt under any Hedging Transactions, provided that such transaction is Agreements entered into for risk management purposes in the ordinary course of business and not for speculative purposes;
(e9) the Incurrence by the Company or any Restricted Subsidiary of Debt in respect of workers’ compensation and claims arising under similar legislation, or pursuant to self-insurance obligations and not in connection with the borrowing of money or the obtaining of advances or credit;
(10) the Incurrence by the Company or any Restricted Subsidiary of Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described abovethe honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that both at the time such Debt is extinguished within 5 Business Days of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and Incurrence, (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstanding.bankers’ acceptances, performance, surety, judgment, appeal or similar bonds, instruments or obligations and
Appears in 3 contracts
Limitation on Debt. Create(a) The Company shall not, incurand shall not permit any Restricted Subsidiary to, assume or suffer Incur any Debt (including Acquired Debt) unless, after giving effect to exist any Debtthe application of the proceeds thereof, excepteither:
(a1) Indebtedness such Debt is Debt of any Credit Party the Company or a Restricted Subsidiary and after giving effect to Agent the Incurrence of such Debt and the Lenders under this Agreement and/or application of the other Loan Documents;proceeds thereof, the Consolidated Interest Coverage Ratio would be greater than 2.0 to 1.0; or
(2) such Debt is Permitted Debt.
(b) Notwithstanding anything to the contrary contained in this Section 1008, any increase in the amount of Debt existing on solely by reason of currency fluctuation shall not be considered an Incurrence of Debt for purposes of this Section 1008. For purposes of determining compliance with this Section 1008, the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate U.S. dollar-equivalent principal amount of such renewed or refinanced Debt denominated in any currency other than U.S. dollars shall not exceed be calculated based on the aggregate principal amount relevant currency exchange rate in effect as of the original date such Debt outstanding on the Effective Date (less any principal payments and is Incurred; provided that the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) Permitted Refinancing Debt denominated in the renewal or refinancing of such same currency as the Debt being Refinanced thereby shall be calculated based on substantially the same or better terms as relevant exchange rate in effect with respect to such as of the date of the Incurrence of the Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debtbeing so Refinanced;
(c) The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Debt in the form of Borrowers additional Debt with the same terms, the accumulation of dividends on Disqualified Stock or any Subsidiary incurred to finance the acquisition Preferred Stock of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect Restricted Subsidiaries (to the incurrence thereof (iextent not paid) no Default and the payment of dividends on Disqualified Stock or Event Preferred Stock of Default shall have occurred and be continuing, and (ii) Restricted Subsidiaries in the aggregate amount form of all such Debt at any one time outstanding (including, without limitation, any Debt additional shares of the type described same class of Disqualified Stock or Preferred Stock of Restricted Subsidiaries will not be deemed to be an Incurrence of Debt or an issuance of Disqualified Stock for purposes of this Section 1008; provided that, in this clause (c) which is set forth on Schedule 8.1 hereof) each case, the amount thereof shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those be included in effect at the time Consolidated Interest Expense of the original incurrence of such Debt;Company as accrued; and
(d) For purposes of determining compliance with this Section 1008, in the event that an item of Debt meets the criteria of more than one of the categories of Permitted Debt described in clauses (a) through (m) of the definition of “Permitted Debt” or is entitled to be incurred pursuant to clause (a)(1) of this Section 1008, the Company shall, in its sole discretion, classify or reclassify such item of Debt (or any part thereof), in any manner that complies with this Section 1008, and such item of Debt will be treated as having been Incurred pursuant to one or more of such categories of Permitted Debt or pursuant to clause (a)(1) of this Section 1008. For purposes of determining any particular amount of Debt under any Hedging Transactionsthis Section 1008, provided that such transaction is entered into for risk management purposes and Guarantees, Liens or obligations, in each case, in support of letters of credit supporting Debt shall not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only included to the extent permitted under Section 8.7 hereof;
(g) such letters of credit are included in the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstandingDebt.
Appears in 3 contracts
Samples: Indenture (Sanmina-Sci Corp), Indenture (Sanmina-Sci Corp), Indenture (Sanmina-Sci Corp)
Limitation on Debt. CreateBorrower will not, incurand it will not cause or permit any Subsidiary to, assume incur or suffer to exist be obligated on any Debt, exceptDebt other than:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate Borrower’s Obligations;
(ii) unsecured trade accounts payable and other normal accruals incurred in the ordinary course of business which are not more than sixty (60) days past due (provided, however, that Borrower nor any Subsidiary shall be required to pay any such account payable or other accrual the payment of which is being contested in good faith and by appropriate proceedings being diligently conducted and for which adequate reserves in accordance with GAAP have been provided, except that Borrower or such Subsidiary, as the case may be, shall pay or cause to be paid all such accounts payable and accruals forthwith upon the commencement of proceedings to foreclose any Lien which is attached as security therefor, unless such foreclosure is stayed by the filing of an appropriate bond in a manner reasonably satisfactory to the Required Lenders);
(iii) Debt either existing as of the date of this Agreement listed on Schedule 4.10 attached hereto (and without giving effect to any amendment to Schedule 4.10 made by Borrower after the date of this Agreement as permitted by Section 4.10 of this Agreement) or as otherwise consented to in writing by the Required Lenders;
(iv) refundings, renewals or replacements of any Debt permitted under clauses (i) through (iii) above and any amendments to any of the foregoing, provided that any such refundings, renewals or replacements or amendment shall not increase the then outstanding principal amount of such renewed or refinanced Debt; and
(v) other Debt shall not otherwise permitted by this Section 5.02(a) in an amount not to exceed $5,000,000 in the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt for Borrower and all of the type described in this clause (c) which is set forth its Subsidiaries on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstandingcombined basis.
Appears in 2 contracts
Samples: Loan Agreement (Schiff Nutrition International, Inc.), Loan Agreement (Schiff Nutrition International, Inc.)
Limitation on Debt. CreateThe Borrower will not, incurand will not permit any of its Subsidiaries to, assume incur or suffer at any time be liable with respect to exist any Debt, Debt except:
(a) Indebtedness of any Credit Party to Agent and Debt under the Lenders under this Agreement and/or the other Loan Documents;
(b) Debt owing to the Borrower or a Subsidiary all of the outstanding common stock of which (other than directors' qualifying shares) is owned directly or indirectly by the Borrower;
(c) Debt of Subsidiaries not otherwise permitted by this Section in an aggregate principal amount at any time outstanding not exceeding $500,000,000;
(d) Debt existing on of the Effective Date Borrower (and set forth not of any Subsidiary) not otherwise permitted by this Section in Schedule 8.1 attached hereto and an aggregate principal amount at any renewals or refinancing of such Debt time outstanding not exceeding $100,000,000;
(provided that e) Guarantees (i) by the Borrower of the Debt of a Subsidiary, (ii) by any Significant Subsidiary of Debt of the Borrower and (iii) by any Subsidiary of Debt of its own Subsidiaries, provided that the Guaranteed Debt is permitted under this Section;
(f) Debt of any Person at the time such Person becomes a Subsidiary and not incurred in contemplation of such event;
(g) Debt of the Borrower or a Subsidiary in existence on the Closing Date and extensions, renewals and refinancings thereof (it being understood that any Debt under the Existing Credit Agreement shall be refinanced on the First Borrowing Date solely with Loans);
(h) Debt of Subsidiaries incurred or assumed (in connection with an equipment trust agreement, conditional sale agreement, chattel mortgage or lease or otherwise) for the purpose of directly or indirectly financing all or any part of the cost of acquiring, constructing or rebuilding any asset and any renewal, extension or refinancing thereof; provided that the aggregate principal amount of such renewed Debt (other than extensions, renewals and refinancings) incurred or refinanced Debt shall not exceed the aggregate principal amount assumed in any fiscal year of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether Borrower pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereofh) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i)350,000,000;
(i) additional unsecured short-term Debt of the Borrower (and not otherwise described above, provided that both at of any Subsidiary) evidenced by commercial paper or similar instruments; and
(j) Debt of the time Borrower (and not of and immediately any Subsidiary) which matures not earlier than six months after giving effect to the incurrence thereof (i) no Default or Event final maturity date of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstandingTerm Loans.
Appears in 2 contracts
Samples: Credit Agreement (Norfolk Southern Corp), Credit Agreement (Norfolk Southern Corp)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to the Agent and the Lenders under this Agreement and/or the other Loan Documentsor any Lender;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers the Borrower or any Subsidiary of its Subsidiaries incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the in an aggregate amount of all such Debt outstanding at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not to exceed $5,000,000250,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Subordinated Debt;
(e) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(ef) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(fg) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;; and
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the in an aggregate amount of all such Debt shall not to exceed $1,000,000 at any one time outstanding50,000.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (GLAUKOS Corp), Revolving Credit and Term Loan Agreement (GLAUKOS Corp)
Limitation on Debt. CreateThe Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness Debt of any Credit Party to Agent and the Lenders under this Agreement and/or Company in respect of the other Loan Documents;Notes.
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on Company to any Subsidiary of the Effective Date (less any principal payments Company that has executed and the amount delivered Security Documents and of any commitment reductions made thereon on such Subsidiary to the Company or prior to any other such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;Subsidiary.
(c) Debt outstanding as of June 30, 1998 as set forth on Schedule 5.16 hereto and any amendments or modifications thereof (but excluding any increase in the principal amount or interest on such Debt).
(d) Debt of Borrowers the Company or any of its Subsidiaries that was incurred by such Person on customary commercial trade terms to vendors, suppliers or other Persons providing services for use by such Person in the ordinary course of its business, unless and until such Debt is outstanding more than 60 days past the original due date therefor.
(e) Debt of the Company or any of its Subsidiaries for any deposit received by the Company or such Subsidiary incurred from any customer or client for services to finance be performed or goods sold by the acquisition of fixed Company or capital assetssuch Subsidiary, whether pursuant unless the Company or such Subsidiary for any reason becomes obligated to a loan or a Capitalized Lease provided that both at refund such deposit and the time of and immediately after giving effect to reimbursement obligation has been outstanding for more than 60 days from the incurrence thereof date such reimbursement obligation occurred.
(f) So long as (i) no Default or Event of Default shall have occurred and be continuingor event that with the lapse of time or the giving of notice, or both, would constitute an Event of Default, then exists or is continuing or would result therefrom and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred or event that with the lapse of time or the giving of notice, or both, would constitute an Event of Default, would exist after giving pro forma effect to the Debt to be incurred (including, without limitation, Defaults or Events of Default or under Section 5.6).
(A) Debt outstanding under the Company's Receivables Facility;
(B) Unsecured Debt of the Company and be continuing its Subsidiaries which, by its terms, is made expressly subordinate to the Debt of the Company under the Notes, provided that the Company may incur unsecured Debt which is subordinate to the Debt of the Notes without regard to any Default, Event of Default or result therefrom event that with the lapse of time or the giving of notice, or both, would constitute an Event of Default, under Section 5.6, in an amount equal to the difference between $11,000,000 and (ii) the aggregate amount of all the Notes that have been prepaid before the date on which such unsecured Debt is incurred under this provision;
(C) Debt of the Company and its Subsidiaries incurred to finance the acquisition of tangible Assets (whether pursuant to a loan, a lease financing or otherwise) after the date hereof provided that such Debt shall be limited to 100% of the cost of such Assets at the time such Assets were acquired.
(D) Debt of a corporation, limited liability company, partnership or other entity which becomes a Subsidiary of the Company after the date hereof as permitted hereunder, provided that such Debt existed at the time at the same time such entity became a Subsidiary and was not exceed $1,000,000 at any one time outstandingcreated within 180 days prior thereto or otherwise in anticipation thereof; and
(E) Debt of the Company with respect to letters of credit or applications or reimbursements therefor to support payment or performance obligations of the Company.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Intracel Corp), Securities Purchase Agreement (Intracel Corp)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to the Agent and the Lenders under this Agreement and/or the other Loan Documentsor any Lender;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing Permitted Refinancing Debt in respect of such Debt (Debt, provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing)that, (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of the incurrence of such renewal or refinancing Permitted Refinancing Debt, no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debttherefrom;
(c) any Debt of Borrowers such Borrower or any Subsidiary of its Subsidiaries incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,00010,000,000, and any renewals or refinancings Permitted Refinancing Debt in respect of such Debt on terms substantially the same or better than those in effect Debt, provided that, at the time of the original incurrence of such Permitted Refinancing Debt, no Event of Default has occurred and is continuing or would result therefrom;
(d) Subordinated Debt;
(de) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(ef) Debt arising from judgments or decrees not deemed to be a Default or an Event of Default under subsection (g) of Section 9.1;
(fg) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations not in connection with money borrowed, in each case provided in the Surety Agreementsordinary course of business, provided that including those incurred to secure health, safety and environmental obligations in the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion ordinary course of the construction projects set forth on Schedule 8.1(i)business;
(i) Debt (i) resulting from a bank or other financial institution honoring a check, draft or similar instrument in the ordinary course of business, (ii) in respect of credit cards, credit card processing services, debit cards, stored value cards, commercial cards (including so-called “purchase cards”, “procurement cards” or “p-cards”) incurred in the ordinary course of business or (iii) arising under or in connection with cash management services in the ordinary course of business;
(j) Debt consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(k) unsecured Debt owing to current or former consultants, employees, officers or directors (or any spouses, ex-spouses, or estates of any of the foregoing) incurred in connection with the repurchase of the Equity Interests of the Parent or any Borrower that have been issued to such Persons;
(l) Debt of any Credit Party (i) in respect of guarantee obligations of the obligations of suppliers, customer and licensees in the ordinary course of business and (ii) incurred in the ordinary course of business in respect of obligations to pay the deferred purchase price of goods and services or progress payments in connection with such goods or services;
(m) Debt to the extent constituting Permitted Investments;
(n) Debt incurred in respect of workers compensation claims, unemployment insurance, other types of social security, pension obligations, vacation pay, health, disability or other employee benefits;
(o) Debt in an aggregate principal amount or face amount at any time outstanding not to exceed $10,000,000 in respect of letters of credit, bank guaranties, surety bonds and similar instruments issued for general corporate purposes and denominated in currencies other than Dollars;
(p) unfunded pensions fund, unfunded defined benefit health plans and other employee benefit plan obligations and liabilities incurred in the ordinary course of business to the extent that the unfunded amounts would not otherwise cause an Event of Default hereunder;
(q) Debt (including any indemnification, adjustment of purchase price, deferred compensation (or other similar arrangements), earnouts or similar obligations) owing to sellers of assets or Equity Interests to a Credit Party (other than the Parent) that is incurred by the applicable Credit Party (other than the Parent) in connection with (i) the disposition of any business, assets or a Subsidiary to the extent not prohibited hereunder, other than guarantees of Debt incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition or (ii) a Permitted Acquisition (or other Investment not prohibited hereunder), in each case other than guarantees of Debt incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such disposition, Permitted Acquisition or other Investment not prohibited hereunder; provided, that in the case of each of the foregoing, to the extent any such Debt requires cash payments prior to the Latest Maturity Date in excess of $10,000,000 in any Fiscal Year, (x) such Debt shall be unsecured and subordinated to the Indebtedness on the terms and conditions reasonably acceptable to the Agent, (y) such Debt shall not mature prior to the date that is twelve (12) months after the Latest Maturity Date, and (z) such Debt shall not provide for amortization in excess of 5.0% per annum;
(r) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 15,000,000 plus the Cumulative Amount at any one time outstanding.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Archaea Energy Inc.), Revolving Credit and Term Loan Agreement (Archaea Energy Inc.)
Limitation on Debt. Create(a) The Company may not, incurand may not permit any of its Restricted Subsidiaries to, assume or suffer to exist Incur any Debt, except:
(a) Indebtedness of any Credit Party unless the Leverage Ratio for the most recently completed fiscal quarter for which financial statements are available would be less than 4.0 to Agent and the Lenders under this Agreement and/or the other Loan Documents;1.
(b) any Debt existing on Notwithstanding the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such foregoing limitation, the following Debt (provided that “Permitted Debt”) may be Incurred: (i) any direct or indirect obligations owed in connection with the payment obligations on the Notes; (ii) Debt (other than Debt described in another clause of this Section 5.04) outstanding, committed or mandated on the date of this Indenture; (iii) Pari Passu Debt of the Company and Debt of its Subsidiaries under Credit Facilities and any Permitted Refinancing Debt in respect thereof, in an aggregate principal amount of such renewed or refinanced Debt shall at any one time outstanding that does not exceed an amount equal to the aggregate greater of (a) $50 million (or the U.S. Dollar Equivalent of any other currency) and (b) 6.0% of Total Assets, plus, (1) any accrual or accretion of interest that increases the principal amount of Debt under Credit Facilities and (2) in the original case of any refinancing of Debt outstanding on permitted under this clause (iii) or any portion thereof, the Effective Date (less any principal payments and the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses Incurred in connection with such refinancing; (iv) Debt owed by the Company to any commitment reductions made thereon on of its Restricted Subsidiaries or prior Debt owed by any of the Restricted Subsidiaries to the Company or any other of the Restricted Subsidiaries; provided, however, that upon either (1) the transfer or other disposition by the Company or such Restricted Subsidiary of any Debt so permitted to a Person other than the Company or any of its Restricted Subsidiaries or (2) such Restricted Subsidiary ceasing to be the Company’s Restricted Subsidiary, the provisions of this clause (iv) shall no longer be applicable to such renewal or refinancing), (ii) the renewal or refinancing of Debt and such Debt shall be on substantially the same or better terms as in effect with respect deemed to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) have been Incurred at the time of such transfer or other disposition; (v) Acquired Debt; (vi) Minority Shareholder Loans; provided that such Debt is subordinated in right of payment to the Notes; (vii) Permitted Refinancing Debt of the Company or any Restricted Subsidiary Incurred in exchange for or the proceeds of which are used to refinance or refund or replace, or any extension or renewal of (including, in each 63 case, successive refinancings, extensions and renewals), Debt of the Company or refinancing no Default any Restricted Subsidiary Incurred pursuant to Section 5.04(a) and clauses (i), (ii), (v), and this clause (vii), as the case may be; (viii) Debt of the Company or Event any Restricted Subsidiary represented by letters of Default has occurred credit in order to provide security for workers’ compensation claims, health, disability or other employee benefits, payment obligations in connection with self- insurance or similar requirements of the Company or any Restricted Subsidiary in the ordinary course of business; (ix) customary indemnification, adjustment of purchase price or similar obligations, in each case, Incurred in connection with the disposition of any assets of the Company or any Restricted Subsidiary, and is continuing earn-out provisions or would result from the renewal contingent payments in respect of purchase price or refinancing adjustment of purchase price or similar obligations in acquisition agreements other than Guarantees of Debt Incurred by any Person acquiring all or any portion of such Debt;
assets for the purpose of financing such acquisition; provided that the maximum aggregate liability in respect of each such Incurrence of such Debt will at no time exceed the gross proceeds actually received by the Company or any Restricted Subsidiary in connection with the related disposition; (x) obligations in respect of (a) customs, VAT or other tax guarantees, (b) bid, performance, completion, guarantee, surety and similar bonds, including Guarantees or obligations of the Company or any Restricted Subsidiary with respect to letters of credit supporting such obligations and (c) any the financing of insurance premiums, in each case, in the ordinary course of business and not related to Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof for borrowed money; (ixi) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall Company or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument including, but not exceed $5,000,000limited to, electronic transfers, wire transfers, netting services and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactionscommercial card payments, drawn against insufficient funds; provided that such transaction Debt is entered into for risk management purposes and not for speculative purposes;
extinguished within five Business Days of Incurrence; (exii) guarantees by the Company or any Restricted Subsidiary of Debt arising from judgments or decrees not deemed to be a Default any other obligation or Event liability of Default under subsection the Company or any Restricted Subsidiary (g) other than of Section 9.1;
(f) any Debt owing to a Person Incurred in violation of this covenant); provided, however, that if the Debt being guaranteed is a Credit Party, but only subordinated in right of payment to the Notes or any Guarantee of the Notes, then such guarantee shall be subordinated substantially to the same extent permitted under Section 8.7 hereof;
as the relevant Debt guaranteed; (g) the Comerica Debt and the Subordinated Debt;
(hxiii) Debt arising under borrowing facilities provided by a special purpose vehicle notes issuer to the Surety Agreements, provided that Company or any Restricted Subsidiary in connection with the Borrowers shall promptly terminate issuance of notes or other similar debt securities intended to be supported primarily by the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion payment obligations of the construction projects set forth on Schedule 8.1(i)Company or any Subsidiary in connection with any vendor financing platform;
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstanding.
Appears in 2 contracts
Samples: Indenture (Millicom International Cellular Sa), Indenture (Millicom International Cellular Sa)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to the Agent and the Lenders under this Agreement and/or the other Loan Documentsor any Lender;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (Debt, provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing)) without the prior written consent of Agent, (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers Borrower or any Subsidiary of its Subsidiaries incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,0002,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Subordinated Debt;
(e) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(ef) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(fg) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under owing to trade creditors incurred in the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion ordinary course of the construction projects set forth on Schedule 8.1(i)business;
(i) Debt arising from the endorsement of instruments in the ordinary course of business;
(j) Performance bonds, surety bonds, and other indemnities or similar obligations issued in the ordinary course of business;
(k) Debt consisting of the financing of insurance premiums in the ordinary course of business.
(l) Debt in respect of netting services, overdraft protection, cash management obligations and similar arrangements entered into in the ordinary course of business;
(m) Debt that is otherwise permitted under Sections 8.7(d) and (e) hereof;
(n) Debt in respect of indemnification, purchase price adjustments, earnouts, deferred purchase price or other similar obligations incurred by the Borrower or any Credit Party in a Permitted Acquisition or similar investment or disposition under agreements which provide for indemnification, the adjustment of the purchase price or for similar adjustments; and
(o) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstanding.
Appears in 2 contracts
Samples: Credit Agreement (Accolade, Inc.), Credit Agreement (Accolade, Inc.)
Limitation on Debt. CreateThe Borrower shall not, and shall not permit any Subsidiary of the Borrower to, incur, assume assume, create or suffer to exist any Debt, exceptexcept for:
(a) Indebtedness in the case of any Credit Party to Agent and the Lenders Borrower:
(i) Debt under this Agreement and/or the other Loan Financing Documents;
(bii) any Debt existing on the Effective Date and set forth in on Schedule 8.1 attached hereto VI;
(iii) Debt representing a refinancing, replacement or refunding of Debt permitted by Section 5.07(a)(i), (ii), (iii), (vii) and any renewals or refinancing of such Debt (ix); provided that that:
(iA) (x) the aggregate principal amount of such renewed Debt outstanding or refinanced Debt shall available will not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) available at the time of such renewal refinancing, replacement or refinancing no Default refunding (plus fees and expenses, including any premium and defeasance costs relating to such refinancing, replacement or Event of Default has occurred and is continuing or would result from refunding), (y) the renewal or refinancing final maturity of such DebtDebt is later than the Initial Term Loan Termination Date (other than Debt that can be settled in the Borrower’s Capital Stock (other than Redeemable Stock); provided that such Debt may only be settled in cash prior to the Initial Term Loan Termination Date up to an aggregate principal amount not to exceed $400,000,000 and not before July 29, 2006; provided further that the Debt being refinanced, replaced or refunded has a final maturity date on or prior to the Initial Term Loan Termination Date) (z) (1) such Debt shall not contain any Payment Restriction more restrictive than the Payment Restrictions contained in the Debt being refinanced, replaced or refunded or (2) in the opinion of the Borrower, such Payment Restrictions are consistent with customary market terms for a financing of its nature and do not adversely affect the ability of the Borrower to meet its payment Obligations under the Financing Documents; and
(B) no obligor shall be liable for any such Debt except to the extent that it was liable for the Debt so refinanced, replaced or refunded, unless such liability in respect of such Debt would otherwise be permitted by Section 5.07(b);
(civ) Debt owing by the Borrower to a Consolidated Subsidiary of the Borrower so long as such Debt is subordinated on terms reasonably satisfactory to the Agent to the Debt of the Borrower under the Financing Documents;
(v) any Lien permitted by Section 5.10 that constitutes Debt not otherwise permitted by this Section;
(vi) Letters of Borrowers or any Subsidiary incurred credit, surety bonds, Guarantees and performance bonds supporting obligations of Subsidiaries so long as, after giving effect to finance such letters of credit, surety bonds, Guarantees and performance bonds (and the acquisition of fixed or capital assetsInvestments represented thereby), whether pursuant to a loan or a Capitalized Lease provided that both at the time of Borrower would be in compliance with Section 5.16;
(vii) other Debt so long as (x) immediately before and immediately after giving effect to the incurrence and application of the proceeds thereof (i) no Default or Event of Default shall have occurred and be continuing, and (iiy) the aggregate amount of all if such Debt at any one time outstanding (includingis secured by a Lien on the Creditor Group Collateral on a first-lien basis, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings final scheduled maturity of such Debt shall in no event be on terms substantially or prior to the same Initial Term Loan Termination Date and (z) if such Debt is secured by a Lien on the Creditor Group Collateral on a first-lien basis, such Debt shall not have any scheduled amortization on or better than those prior to the Initial Term Loan Termination Date in effect at the time an aggregate amount in excess of 10% of the original incurrence initial amount of such Debt;
(dviii) Debt under incurred as a bridge financing for a proposed sale, transfer or other disposition of assets pursuant to Section 5.18(iv) with respect to assets acquired after June 23, 2005; provided that (w) the only direct or contingent obligor in respect of such Debt is the holder of the assets that are the subject of such sale, transfer or other disposition, (x) the interest rate applicable to such Debt does not exceed the then applicable market interest rate, (y) such Debt is repaid with the proceeds of such sale, transfer or other disposition upon consummation thereof and (z) such Debt was incurred in connection with the acquisition by the Borrower of the assets that are the subject of such sale, transfer or other disposition;
(ix) Debt incurred to refinance, replace or refund any Hedging Transactionsof the obligations arising in respect of the Existing Trust Preferred Securities, provided that (x) the only direct or contingent obligor in respect of such transaction Debt is entered into for risk management purposes the Borrower and not for speculative purposes;(y) the final scheduled maturity of such Debt shall be later than the Initial Term Loan Termination Date; and
(ex) Debt arising from judgments or decrees in an aggregate principal amount not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Partyexceed $500,000,000 at any one time outstanding, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt so long as immediately before and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence and application of the proceeds thereof (i) no Default or Event of Default shall have occurred and be continuing continuing; and
(b) in the case of the Borrower’s Subsidiaries:
(i) Guarantees of Debt of the Borrower under the Financing Documents, the Senior Secured Exchange Notes and Debt permitted by clause (a)(iii) or result therefrom (a)(vii) above, the proceeds of which are applied to permanently reduce Total Bank Exposure or prepay the Senior Secured Exchange Notes (it being understood that if, after the Effective Date, any Subsidiary Guarantees the Debt of the Borrower under the Financing Documents, such Subsidiary may also Guarantee the Senior Secured Exchange Notes and the Debt permitted by clause (a)(iii) or (a)(vii) above, the proceeds of which are applied to permanently reduce Total Bank Exposure or prepay the Senior Secured Exchange Notes);
(ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstanding.incurred by a Subsidiary:
Appears in 2 contracts
Samples: Credit and Reimbursement Agreement (Aes Corp), Credit and Reimbursement Agreement (Aes Corp)
Limitation on Debt. Create(a) The Issuer shall not, and shall not permit any Restricted Subsidiary to, create, issue, incur, assume assume, guarantee or suffer to exist in any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals manner become directly or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect indirectly liable with respect to such Debt on or otherwise become responsible for, contingently or otherwise, the Effective Datepayment of (individually and collectively, and shall otherwise be in compliance with this Agreementto “incur” or, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) as appropriate, an “incurrence”), any Debt of Borrowers or (including any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease Acquired Debt); provided that both at the time of Issuer and immediately any Guarantor shall be permitted to incur Debt (including Acquired Debt) if in each case after giving effect to the incurrence thereof of such Debt and the application of the proceeds thereof, on a pro forma basis, the Consolidated Fixed Charge Coverage Ratio for the four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Debt, taken as one period, would be greater than 2.0 to 1.0.
(b) This Section 4.06 shall not, however, prohibit the following (collectively, “Permitted Debt”):
(i) no Default the incurrence by the Issuer or Event any Restricted Subsidiary of Default shall have occurred and be continuingDebt under Credit Facilities in an aggregate principal amount, and (ii) the aggregate amount of all such together with any Permitted Refinancing Debt thereof, at any one time outstanding not to exceed an aggregate principal amount (excluding any accrued or accreted interest thereon) equal to £125 million;
(ii) the Notes issued on the Issue Date and the Guarantees thereof;
(iii) any Debt of the Issuer or any Restricted Subsidiary (other than Debt described in clauses (i) or (ii) of this paragraph (b)) outstanding on the date of this Indenture;
(iv) the incurrence by the Issuer or any Restricted Subsidiary of Debt representing Capitalized Lease Obligations, mortgage financings or purchase money obligations incurred for the purpose of financing all or any part of the purchase price, lease expense, rental payments or cost of design, construction, installation or improvement of property, plant or equipment or other assets (including Capital Stock) used in the business of the Issuer or any of its Restricted Subsidiaries, in an aggregate principal amount, including all Permitted Refinancing Debt incurred or issued to renew, refund, refinance, replace, defease or discharge any Debt incurred pursuant to this clause, not to exceed at any time outstanding the greater of (i) £20.0 million and (ii) 20% of Consolidated EBITDA;
(v) the incurrence by the Issuer or any Restricted Subsidiary of intercompany Debt between the Issuer and any Restricted Subsidiary or between or among Restricted Subsidiaries; provided that
(A) such debt is unsecured and the applicable creditor thereunder accedes to the Intercreditor Agreement as an Intra-group Lender;
(B) if the Issuer or a Guarantor is the obligor on any such Debt and the payee is not the Issuer or a Guarantor (except in respect of intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Issuer and its Restricted Subsidiaries and only to the extent legally permitted), (x) unless required by a Credit Facility, such Debt is unsecured and (y) it is subordinated in right of payment to the Notes, in the case of the Issuer, and the Guarantees, in the case of a Guarantor, pursuant to the Intercreditor Agreement; and
(C) (x) any disposition, pledge or transfer of any such Debt to a Person (other than a disposition, pledge or transfer to the Issuer or a Restricted Subsidiary) and (y) any transaction pursuant to which any Restricted Subsidiary that has Debt owing by the Issuer or another Restricted Subsidiary ceases to be a Restricted Subsidiary, will, in each case, be deemed to be an incurrence of such Debt not permitted by this clause (v);
(vi) the guarantee by the Issuer or any Restricted Subsidiary of Debt of the Issuer or any Restricted Subsidiary to the extent that the guaranteed Debt was permitted to be incurred by another provision of this covenant; provided that if the Debt being guaranteed is subordinated to or pari passu with the Notes or a Guarantee, then the guarantee must be subordinated or pari passu, as applicable to the same extent as the Debt guaranteed;
(vii) the incurrence by the Issuer or any Restricted Subsidiary of Debt arising from agreements providing for guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock, other than guarantees or similar credit support given by the Issuer or any Restricted Subsidiary of Debt incurred by any Person acquiring all or any portion of such assets for the type described purpose of financing such acquisition; provided that the maximum aggregate liability in respect of all such Debt permitted pursuant to this clause (c) which is set forth on Schedule 8.1 hereofvii) shall not at no time exceed $5,000,000the gross proceeds, and any renewals or refinancings including non-cash proceeds (the Fair Market Value of such Debt on terms substantially the same or better than those in effect non-cash proceeds being measured at the time of received and without giving effect to any subsequent changes in value) actually received from the original incurrence sale of such Debtassets;
(dviii) the incurrence by the Issuer or any Restricted Subsidiary of Debt under any Hedging Transactions, provided that such transaction is Obligations entered into for risk management purposes in the ordinary course of business and not for speculative purposes;
(eix) the incurrence by the Issuer or any Restricted Subsidiary of Debt in respect of workers’ compensation and claims arising under similar legislation, or pursuant to self-insurance obligations and not in connection with the borrowing of money or the obtaining of advances or credit;
(x) the incurrence by the Issuer or any Restricted Subsidiary of Debt arising from judgments (A) the honoring by a bank or decrees not deemed to be other financial institution of a Default check, draft or Event similar instrument inadvertently (except in the case of Default under subsection daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Debt is extinguished within five Business Days of incurrence, (gB) bankers’ acceptances, performance, surety, judgment, appeal or similar bonds, instruments or obligations, (C) completion guarantees provided or letters of Section 9.1credit obtained by the Issuer or any Restricted Subsidiary in the ordinary course of business, (D) the financing of insurance premiums in the ordinary course of business, and (E) any customary cash management, cash pooling or netting or setting off arrangements;
(fxi) Debt owing of any Person incurred and outstanding on the date on which such Person becomes a Restricted Subsidiary of the Issuer or another Restricted Subsidiary or is merged, consolidated, amalgamated or otherwise combined with (including pursuant to any acquisition of assets and assumption of related liabilities) the Issuer or any Restricted Subsidiary (other than (A) Debt incurred (x) to provide all or any portion of the funds utilized to consummate the transaction or series of related transactions pursuant to which such Person became a Person Restricted Subsidiary or was otherwise acquired by the Issuer or a Restricted Subsidiary or (y) otherwise in connection with or contemplation of such acquisition or (B) Debt that is a Credit Partyextinguished within three Business Days of incurrence); provided, but only however, with respect to the extent permitted under Section 8.7 hereof;
this clause (g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreementsxi), provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and such acquisition or other transaction, the Issuer could incur at least £1.00 of additional Debt pursuant to the Consolidated Fixed Charge Coverage Ratio test set forth above or such Consolidated Fixed Charge Coverage Ratio would not be less than it was immediately after prior to giving pro forma effect to such acquisition or other transaction;
(xii) the incurrence thereof by the Issuer or any Restricted Subsidiary of Permitted Refinancing Debt in exchange for or the net proceeds of which are used to refund, replace or refinance Debt incurred by it pursuant to, or described in, Section 4.06(a) and paragraphs (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and ), (ii) (iii), (iv) and (xi) of this Section 4.06(b), as the case may be;
(xiii) the incurrence of Debt of the Issuer and its Restricted Subsidiaries owed to their employees in connection with loan stock issued under employee stock purchase plans so long as the aggregate principal amount of all such Debt shall not exceed $1,000,000 at any one time outstanding.£
Appears in 2 contracts
Samples: Indenture (T F Bell Holdings LTD), Indenture (Portishead Insurance Management LTD)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness The Parent will not, and will not permit any of any Credit Party its Restricted Subsidiaries to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) incur any Debt existing on (including Acquired Debt); provided, however, that the Effective Date and set forth in Schedule 8.1 attached hereto Parent, the Issuer and any renewals or refinancing of such Restricted Subsidiary may incur Debt (provided that (iincluding Acquired Debt) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing)if, (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially and the same or better than those in effect at the time receipt and application of the original incurrence of such Debt;proceeds therefrom:
(d1) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes the Consolidated Fixed Charge Coverage Ratio of the Parent and not for speculative purposes;its Restricted Subsidiaries would be greater than 2.00 to 1.00; and
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i2) no Default or Event of Default shall have occurred and be continuing at the time or result therefrom and as a consequence of the incurrence of such Debt (ii) any Debt incurred pursuant to this provision being herein referred to as “Coverage Debt”); provided, however, that the aggregate amount of all such Debt (other than Acquired Debt) that may be incurred or issued pursuant to the foregoing by Non-Guarantor Subsidiaries shall not exceed $1,000,000 100.0 million at any one time outstanding.
(b) Notwithstanding Section 4.06(a), the Parent and its Restricted Subsidiaries may incur Permitted Debt.
(c) For purposes of determining any particular amount of Debt under this Section 4.06:
(1) Debt outstanding under the Credit Agreement and the Sumitomo Credit Agreement on the Issue Date will at all times be treated as incurred pursuant to clause (1) of the definition of Permitted Debt and shall not be permitted to be reclassified and
(2) guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount will not be included.
(d) Except as provided above, for purposes of determining compliance with this Section 4.06, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above, including any Coverage Debt and any category of Permitted Debt, the Parent, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt.
(e) For purposes of determining compliance of any non-U.S. dollar-denominated Debt with this Section 4.06, the amount outstanding under U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall at all times be calculated based on the relevant currency exchange rate in effect on the date such Debt was incurred, in the case of any term Debt, or first committed, in the cases of any revolving credit Debt; provided, however, that if such Debt is incurred to Refinance other Debt denominated in the same or different currency, and such Refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such Refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such Refinancing Debt does not exceed the principal amount of such indebtedness being Refinanced.
(f) The accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Stock in the forms of additional shares of Capital Stock with the same terms will not be deemed to be an incurrence of Debt or issuance of Capital Stock for purposes of this Section 4.06.
Appears in 2 contracts
Samples: First Supplemental Indenture (Olin Corp), First Supplemental Indenture (Olin Corp)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt of Company or any of its Subsidiaries existing on the Effective Date and set forth in Schedule 8.1 attached hereto (other than any Debt of the type described in clause (c) below) and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), and (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms (taken as a whole, as reasonably determined by the Borrowers and the Agent) as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers Company or any Subsidiary of its Subsidiaries incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default the Credit Parties shall have occurred and be continuing, in pro forma compliance with the financial covenants set forth in Section 7.9 hereof and (ii) the aggregate amount of all such Debt at any one time outstanding (includingoutstanding, without limitation, together with any such Debt of the type described in this incurred under clause (cj) which is set forth on Schedule 8.1 hereof) of this Section 8.1, shall not exceed $5,000,000, and any renewals (x) on or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only prior to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety AgreementsTrigger Date, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and $3,000,000 at any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the one time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom outstanding and (iiy) after the aggregate amount of all such Debt shall not exceed Trigger Date, $1,000,000 4,000,000 at any one time outstanding.;
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (PMFG, Inc.), Revolving Credit and Term Loan Agreement (Peerless Manufacturing Co)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to the Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers the Borrower or any Subsidiary of its Subsidiaries incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000250,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Subordinated Debt;
(e) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(ef) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(fg) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;; and
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 100,000 at any one time outstanding.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Inogen Inc), Revolving Credit and Term Loan Agreement (Inogen Inc)
Limitation on Debt. CreateAK Steel shall not issue, incurdirectly or indirectly, assume or suffer any Debt unless, immediately after giving effect to exist any the issuance of such Debt and the receipt and application of the proceeds thereof, the pro forma Consolidated EBITDA Coverage Ratio would be greater than 2.5 to 1.0. Notwithstanding the foregoing limitation, AK Steel may issue the following Debt, except:
(a) Indebtedness Debt issued by AK Steel pursuant to the Permitted Credit Facilities and Guarantees by AK Steel of any Credit Party obligations in respect of bonds or notes (in an aggregate principal amount not exceeding $60.0 million) payable solely from the proceeds of (i) taxes payable by AK Steel on real or depreciable personal property relating to Agent the Rockport Works or (ii) charges payable by AK Steel for sewer and water services relating to the Lenders Rockport Works and, to the extent that such taxes or charges are insufficient to make such payments, payments under this Agreement and/or such Guarantees (provided that the other Loan Documentspayments under such bonds or notes or such Guarantees are not required to be prefunded by more than an aggregate amount equal to one year of debt service on such bonds or notes and are not subject to acceleration by the express terms thereof or otherwise);
(b) Debt issued by AK Steel owed to and held by a Wholly Owned Subsidiary; provided, however, that any Debt existing on the Effective Date and set forth subsequent issuance or transfer of any Equity Interests that results in Schedule 8.1 attached hereto and such Wholly Owned Subsidiary ceasing to be a Wholly Owned Subsidiary or any renewals or refinancing transfer of such Debt (provided other than to another Wholly Owned Subsidiary) shall be deemed, in each case, to constitute the issuance of such Debt by AK Steel;
(c) Securities (other than Initial Securities issued after the first date on which the Initial Securities were originally issued);
(d) Debt (other than Debt described in subsections (a) or (b) of this Section 4.5) outstanding on the first date on which the Initial Securities were originally issued;
(e) Debt issued by AK Steel, whether or not secured by a Lien, constituting all or a part of the purchase price of assets or property acquired or constructed after the first date on which the Initial Securities were originally issued; provided, however, that Debt issued under this subsection (e) in any calendar year shall not exceed in aggregate principal amount the sum of (i) $50.0 million for each of 2002, 2003 and 2004, and $35.0 million for each calendar year from and including 2005 to and including 2012 plus (ii) the excess of the aggregate principal amount otherwise permitted to be issued under this subsection (e) in all previous calendar years to and including the calendar year in which the Initial Securities were originally issued over the aggregate principal amount actually issued by AK Steel during such period under this subsection (e);
(f) Refinancing Debt in respect of any Debt permitted pursuant to the first paragraph of this Section 4.5 or any Debt permitted pursuant to subsection (c), (d) or (e) of this Section 4.5 or this subsection (f);
(g) Obligations of AK Steel pursuant to (i) interest rate swap or similar agreements designed to protect AK Steel against fluctuations in interest rates in respect of Debt of AK Steel to the extent the notional principal amount of such renewed or refinanced Debt shall obligation does not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to which such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuinginterest rate contracts relate, and (ii) foreign exchange or commodity hedge, exchange or similar agreements designed to protect AK Steel against fluctuations in foreign currency exchange rates or commodity prices in respect of foreign exchange or commodity exposures incurred by AK Steel in the aggregate amount ordinary course of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debtits business;
(h) Debt arising under the Surety Agreements(not otherwise permitted to be issued pursuant to subsections (a) through (g) of this Section 4.5) in an aggregate principal amount which, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
together with (i) additional unsecured any other outstanding Debt not otherwise described above, provided that both at the time of and immediately after giving effect issued by AK Steel pursuant to the incurrence thereof this subsection (ih) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount Debt issued and Preferred Equity Interests then outstanding and issued by Subsidiaries pursuant to subsection (h) of all such Debt shall Section 4.6 hereof does not exceed $1,000,000 100.0 million at any one time outstanding.; or
Appears in 2 contracts
Samples: Indenture (Ak Steel Holding Corp), Indenture (Ak Steel Holding Corp)
Limitation on Debt. Create(a) The Issuer shall not, and shall not permit any Restricted Subsidiary to, create, issue, incur, assume assume, guarantee or suffer in any manner become directly or indirectly liable with respect to exist or otherwise become responsible for, contingently or otherwise, the payment of (individually and collectively, to “incur” or, as appropriate, an “incurrence”), any Debt (including any Acquired Debt); provided, excepthowever, that:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Issuer shall be permitted to incur Debt shall not exceed (including Acquired Debt) if;
(A) after giving effect to the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing incurrence of such Debt shall and the application of the proceeds thereof, on a pro forma basis, no Default or Event of Default would occur or be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and continuing; and
(iiiB) at the time of such renewal or refinancing no Default or Event of Default has occurred incurrence and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof of such Debt and the application of the proceeds thereof, on a pro forma basis, the Consolidated Leverage Ratio for the Issuer and its Restricted Subsidiaries would be less than 3.5 to 1.0.
(b) This Section 4.06(a) shall not, however, prohibit the following (collectively, “Permitted Debt”):
(i) no Default the incurrence by the Issuer or Event Invitel of Default shall have occurred and be continuing, and (ii) the revolving credit Debt under Credit Facilities in an aggregate principal amount of all such Debt at any one time outstanding not to exceed €18.0 million;
(ii) the incurrence by the Issuer of Debt pursuant to the Notes (other than Additional Notes) and the incurrence of Debt by any Subsidiary Guarantor pursuant to its Guarantee and Debt represented by the Security Documents, including with respect to such Debt, “parallel debt” obligations created under the Intercreditor Agreement and the Security Documents;
(iii) any Debt of the Issuer or any Restricted Subsidiary (other than Debt described in another clause of this Section 4.06(b)) outstanding on the Issue Date after giving effect to the use of proceeds of the offering of the Notes on the Issue Date;
(iv) the incurrence by the Issuer or any Restricted Subsidiary of intercompany Debt between the Issuer and any Restricted Subsidiary or between or among Restricted Subsidiaries; provided that
(A) if the Issuer is the obligor on any such Debt, such Debt is expressly subordinated to the prior payment in full in cash of all obligations with respect to the Notes upon any insolvency event;
(B) if a Subsidiary Guarantor is the obligor on any such Debt, such Debt is expressly subordinated to the prior payment in full in cash of all obligations of such obligor with respect to its Guarantee upon any insolvency event; and
(C) (I) any disposition, pledge or transfer of any such Debt to a Person (other than a disposition, pledge or transfer to the Issuer or a Restricted Subsidiary) and (II) any transaction pursuant to which any Restricted Subsidiary that has Debt owing to the Issuer or another Restricted Subsidiary ceases to be a Restricted Subsidiary, shall, in each case, be deemed to be an incurrence of such Debt not permitted by this clause (iv);
(v) guarantees of the Issuer’s Debt or Debt of any Restricted Subsidiary by any Restricted Subsidiary that are permitted by and made in accordance with the provisions of Section 4.13; provided that if the Debt being guaranteed is subordinate to or pari passu with the Notes or a Guarantee, then the Guarantee must be subordinated or xxxx xxxxx, as applicable, to the same extent as the Debt guaranteed;
(vi) guarantees of the Debt of any Restricted Subsidiary by the Issuer;
(vii) the incurrence by the Issuer or any Restricted Subsidiary of Debt arising from agreements providing for guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock, other than guarantees or similar credit support given by the Issuer or any Restricted Subsidiary of Debt incurred by any Person acquiring all or any portion of such assets for the purpose of financing such acquisition; provided that (A) the maximum aggregate liability in respect of all such Debt permitted pursuant to this clause (vii) shall at no time exceed the gross proceeds, including non-cash proceeds (the Fair Market Value of such non-cash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received from the sale of such assets and (B) such Debt is not reflected in the balance sheet of the Issuer or any Restricted Subsidiary (contingent liabilities referred to in a footnote to financial statements and not otherwise reflected on the balance sheet shall not be deemed to be reflected on such balance sheet for purposes of this clause (B));
(viii) the incurrence by the Issuer or any Restricted Subsidiary of Debt under Currency Agreements not entered into for speculative purposes;
(ix) the incurrence by the Issuer or any Restricted Subsidiary of Debt under Interest Rate Agreements not entered into for speculative purposes;
(x) the incurrence of Debt by the Issuer or any Restricted Subsidiary in respect of workers’ compensation and claims arising under similar legislation, or pursuant to self-insurance obligations and not in connection with the borrowing of money or the obtaining of advances or credit;
(xi) the incurrence of Debt by the Issuer or any Restricted Subsidiary arising from (A) the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Debt is extinguished within 5 Business Days of incurrence, (B) bankers’ acceptances, performance, surety, judgment, appeal or similar bonds, instruments or obligations, or (C) completion guarantees provided or letters of credit obtained by the Issuer or any Restricted Subsidiary in the ordinary course of business;
(xii) the incurrence by the Issuer or any Restricted Subsidiary of Permitted Refinancing Debt in exchange for or the net proceeds of which are used to refund, replace or refinance Debt incurred by it pursuant to, or described in, Section 4.06(a), (b)(ii) and (b)(iii), as the case may be;
(xiii) Acquired Debt of any Person outstanding on the date on which such Person becomes a Restricted Subsidiary or is merged, consolidated, amalgamated or otherwise combined with (including pursuant to any acquisition of assets and assumption of related liabilities) the Company or any Restricted Subsidiary; provided, however, with respect to this clause (xiii) that at the time of the acquisition or other transaction pursuant to which such Indebtedness was deemed to be incurred the Issuer would have been able to incur €1.00 of additional Indebtedness pursuant to the first paragraph of this covenant after giving effect to the incurrence of such Indebtedness pursuant to this clause (xiii);
(xiv) the incurrence by the Issuer or any Restricted Subsidiary of Indebtedness represented by Capitalized Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation or improvement of property, plant or equipment used in the business of the Issuer or any of its Restricted Subsidiaries, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (n), not to exceed €15.0 million at any time outstanding, and
(xv) the incurrence of Debt by the Issuer or any Restricted Subsidiary (other than and in addition to Debt permitted under clauses (i) through (xiv) above) in an aggregate principal amount at any one time outstanding not to exceed €25 million.
(c) For purposes of determining compliance with any restriction on the incurrence of Debt in euros where Debt is denominated in a different currency, the amount of such Debt shall be the Euro Equivalent determined on the date of such determination; provided that if any such Debt denominated in a different currency is subject to a Currency Agreement (with respect to euros) covering principal, premium, if any, and interest payable on such Debt, the amount of such Debt expressed in euros shall be adjusted to take into account the effect of such agreement. The principal amount of any Permitted Refinancing Debt incurred in the same currency as the Debt being refinanced shall be the Euro Equivalent of the Debt refinanced determined on the date such Debt being refinanced was initially incurred. Notwithstanding any other provision of this covenant, for purposes of determining compliance with this Section 4.06, increases in Debt solely due to fluctuations in the exchange rates of currencies shall not be deemed to exceed the maximum amount that the Issuer or any Restricted Subsidiary may incur under this Section 4.06.
(d) For purposes of determining any particular amount of Debt under this Section 4.06:
(i) obligations with respect to letters of credit, guarantees or Liens, in each case supporting Debt otherwise included in the determination of such particular amount shall not be included;
(ii) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.10 shall not be treated as Debt; and
(iii) accrual of interest, accrual of dividends, the accretion of accreted value, the amortization of original issue discount, the obligation to pay commitment fees and the payment of regularly scheduled interest in the form of additional Debt of the same instrument or dividends on Redeemable Capital Stock or Preferred Stock of non-Guarantor Restricted Subsidiaries paid in additional shares of Redeemable Capital Stock or Preferred Stock, as the case may be, shall not be treated as Debt.
(e) In the event that an item of Debt meets the criteria of more than one of the types of Debt described in this Section 4.06, the Issuer, in its sole discretion, shall classify items of Debt and shall only be required to include the amount and type of such Debt in one of such clauses, and the Issuer shall be entitled to divide and classify an item of Debt in more than one of the types of Debt described in this Section 4.06, and may change the classification of an item of Debt (or any portion thereof) to any other type of Debt described in this Section 4.06 at any time.
(f) Neither the Issuer nor any Subsidiary Guarantor shall incur any Debt (including Permitted Debt) that is contractually subordinated in right of payment to any other Debt of the Issuer or such Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Notes and the applicable Note Guarantee on substantially identical terms; provided, however, that no Indebtedness shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Issuer or any Subsidiary Guarantor solely by virtue of being unsecured or by virtue of being secured on a junior priority basis.
(g) Notwithstanding anything to the contrary, in no event shall either (a) the Issuer or any of the Restricted Subsidiaries incur any Debt that is secured by a Lien on any of its assets or properties (including, without limitation, the Collateral) or (b) any Restricted Subsidiary that is not a Subsidiary Guarantor incur any Debt of unless, in either case, the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000Consolidated Secured Leverage Ratio for the Issuer and its Restricted Subsidiaries, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original such incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstandingand the application of the proceeds thereof, on a pro forma basis, would be less than 2.5 to 1.0.
Appears in 2 contracts
Samples: Indenture (Invitel Holdings a/S), Indenture (Invitel Holdings a/S)
Limitation on Debt. CreateNeither the Company nor any of its Subsidiaries shall, incurdirectly or indirectly, issue, assume or suffer to exist otherwise incur any Debt, except:
other than: (a) Indebtedness of any Credit Party to Agent and the Lenders Debt under this Agreement and/or and the other Loan Documents;
Notes; (b) any Debt existing on under the Effective Date and set forth Revolving Credit Facility (as defined in Schedule 8.1 attached hereto and any renewals or refinancing the Credit Agreement) portion of such the Credit Agreement in a principal amount not exceeding $53 million; (c) Debt under the Term Loan (provided that (ias defined in the Credit Agreement) portion of the aggregate Credit Agreement in the original principal amount of such renewed or refinanced $12 million, as the principal balance thereof is reduced from time to time in accordance with its terms; (d) Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date secured by a Lien permitted under Section 10.8(v) hereof; (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (iie) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such additional unsecured Debt at any one time outstanding in a principal amount not exceeding $4,000,000; (includingf) the Debt reflected in Schedule 10.7; and (g) refinancings, without limitationrefundings and extensions of the foregoing, provided that such refinancing, refunding or extension shall not:
(a) be in a principal amount greater than (x) the amount permitted above or (y) as to any refinancing of the Revolving Credit Facility (as defined in the Credit Agreement) portion of the Credit Agreement, an amount equal to $53 million plus the amount (the "Cushion Amount") by which the unsecured Debt of the type described in Company and it Subsidiaries outstanding under subsection (e) of this clause (c) which Section 10.7 is set forth on Schedule 8.1 hereof) shall not exceed less than $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect 4,000,000 at the time of any such refinancing; provided, that the original incurrence amount of additional unsecured Debt thereafter permitted under subsection (e) of this Section 10.7 shall be equal to $4,000,000 less the Cushion Amount; or
(b) be pursuant to any agreement that provides for a final maturity of such Debt;Debt that occurs after May 6, 2004; or
(c) be pursuant to any agreement that purports to restrict the Company's ability to pay, without conflict with the terms of such agreement, principal of, or interest (or premium, if any) on, the Debt outstanding under this Agreement and the Notes in accordance with the terms thereof, other than by reason of the existence of an event of default that would permit the holder of such Debt to accelerate the maturity thereof or of an event which, with the giving of notice or lapse of time, or both, would constitute such an event of default; or
(d) Debt be pursuant to any agreement that purports otherwise to alter the rights and obligations of any Holder of Notes under Article 12 of this Agreement or any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only subordination provisions applicable immediately prior to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreementseffectiveness of such refinancing, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described aboverefunding or extension, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default Debt so refinanced, refunded or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstanding.extended. 59 53
Appears in 1 contract
Samples: Senior Subordinated Note and Warrant Purchase Agreement (Phoenix Racing Inc)
Limitation on Debt. Create1.1 The Company shall not, and shall not permit any Restricted Subsidiary to, create, issue, incur, assume assume, guarantee or suffer in any manner become directly or indirectly liable with respect to exist or otherwise become responsible for, contingently or otherwise, the payment of (individually and collectively, to “Incur” or, as appropriate, an “Incurrence”), any Debt (including any Acquired Debt, except); provided that the Company and any Guarantor shall be permitted to Incur Debt (including Acquired Debt) if:
(a) Indebtedness after giving effect to the Incurrence of any Credit Party to Agent such Debt and the Lenders under this Agreement and/or application of the other Loan Documentsproceeds thereof, on a pro forma basis, no Default or Event of Default would occur or be continuing;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event Incurrence and after giving effect to the Incurrence of Default has occurred such Debt and is continuing or would result from the renewal or refinancing application of the proceeds thereof, on a pro forma basis, the Consolidated Fixed Charge Coverage Ratio for the four full fiscal quarters for which financial statements are available immediately preceding the Incurrence of such Debt, taken as one period, would be greater than 2.00 to 1.00; and
(c) if such Debt is Senior Debt, at the time of such Incurrence and after giving effect to the Incurrence of such Senior Debt and the application of the proceeds thereof, on a pro forma basis, the Consolidated Senior Leverage Ratio for the four full fiscal quarters for which financial statements are available immediately preceding the Incurrence of such Senior Debt, taken as one period, would be less than 4.00 to 1.00.
1.2 This Section 1 (Limitation on Debt) shall not, however, prohibit the following (collectively, “Permitted Debt”):
(a) the Incurrence by the Company or any Restricted Subsidiary of Debt under Credit Facilities in an aggregate principal amount at any one time outstanding not to exceed an amount equal to (i) the Total Commitments, minus (ii) the amount of any permanent repayments or permanent prepayments of such Debt with, in each case, the proceeds of Asset Sales made in accordance with Section 4 (Limitation on Asset Sales) plus (iii) in the case of any refinancing of any Debt permitted under this paragraph (a), the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing;
(b) the Incurrence by the Company of Debt pursuant to the Notes (other than Additional Notes) and the Incurrence of Debt by the Guarantors pursuant to the Note Guarantees (other than guarantees of Additional Notes);
(c) any Debt of Borrowers the Company or any Restricted Subsidiary incurred to finance (other than Debt described in another paragraph of this Section 1.2) outstanding on the acquisition Issue Date;
(d) the Incurrence by the Company or any Restricted Subsidiary of fixed intercompany Debt between the Company and any Restricted Subsidiary or capital assets, whether pursuant to a loan between or a Capitalized Lease among Restricted Subsidiaries; provided that both at the time of and immediately after giving effect to the incurrence thereof that:
(i) no Default if the Company or Event a Guarantor is the obligor on any such Debt and the lender of Default shall have occurred such Debt is not the Company or a Guarantor, it is unsecured and be continuingexpressly subordinated in right of payment to the prior payment in full in cash (whether upon Stated Maturity, acceleration or otherwise) and the performance in full of its obligations under this Agreement; and
(ii) (x) any disposition, pledge or transfer of any such Debt to any Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) and (y) any transaction pursuant to which any Restricted Subsidiary that has Debt owing from the Company or another Restricted Subsidiary ceases to be a Restricted Subsidiary, will, in each case, be deemed to be an Incurrence of such Debt not permitted by this paragraph (d);
(e) guarantees of the Notes made in accordance with the provisions of Section 6 (Limitation on Guarantees of Debt by Restricted Subsidiaries);
(f) the Incurrence by the Company or any Restricted Subsidiary of Debt represented by Capitalized Lease Obligations, mortgage financings, purchase money obligations or other Debt Incurred or assumed in connection with the acquisition, lease, rental or development and improvement of real or personal, movable or immovable, property or assets, in each case, Incurred for the purpose of financing or refinancing all or any part of the purchase price, lease expense or cost of construction or improvement of property plant or equipment used in the Company’s or any Restricted Subsidiary’s business (including any reasonable related fees or expenses Incurred in connection with such acquisition or development); provided that the principal amount of such Debt so Incurred when aggregated with other Debt previously Incurred in reliance on this paragraph (f) and still outstanding shall not in the aggregate amount exceed the greater of all such €15.0 million and 3% of Total Assets;
(g) the Incurrence by the Company or any Restricted Subsidiary of Debt at any one time outstanding (arising from agreements providing for guarantees, indemnities or obligations in respect of amounts or other purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock, other than guarantees or similar credit support given by the Company or any Restricted Subsidiary of Debt Incurred by any Person acquiring all or any portion of such assets for the type described purpose of financing such acquisition; provided that the maximum aggregate liability in respect of all such Debt permitted pursuant to this clause paragraph (c) which is set forth on Schedule 8.1 hereofg) shall not at no time exceed $5,000,000the gross proceeds, and any renewals or refinancings including non-cash proceeds (the Fair Market Value of such Debt on terms substantially the same or better than those in effect non-cash proceeds being measured at the time of received and without giving effect to any subsequent changes in value), actually received from the original incurrence sale of such Debtassets;
(dh) the Incurrence by the Company or any Restricted Subsidiary of Debt under any Hedging Transactions, provided that such transaction is Agreements entered into for risk management purposes in the ordinary course of business and not for speculative purposes;
(ei) the Incurrence by the Company or any Restricted Subsidiary of Debt in respect of workers’ compensation and claims arising from judgments under similar legislation, or decrees pursuant to self-insurance obligations and not deemed to be a Default in connection with the borrowing of money or Event the obtaining of Default under subsection (g) of Section 9.1advances or credit;
(fj) the Incurrence of Debt by the Company or any Restricted Subsidiary arising from (i) the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Debt is extinguished within 5 business days of Incurrence, (ii) bankers’ acceptances, performance, surety, judgment, appeal or similar bonds, instruments or obligations and (iii) completion guarantees provided or letters of credit obtained by the Company or any Restricted Subsidiary in the ordinary course of business;
(k) the Incurrence by the Company or any Restricted Subsidiary of Permitted Refinancing Debt in exchange for or the Net Cash Proceeds of which are used to refund, replace or refinance Debt Incurred by it pursuant to, or described in, paragraphs 1.1, 1.2(b), (c), (k) and (t) of this Section 1, as the case may be;
(l) customer deposits and advance payments received in the ordinary course of business from customers for goods purchased in the ordinary course of business;
(m) Management Advances;
(n) any customary cash management, cash pooling or netting or setting off arrangements in the ordinary course of business;
(o) without limiting Section 6 (Limitation on Guarantees of Debt by Restricted Subsidiaries), the guarantee by the Company or any Restricted Subsidiary of Debt that was permitted to be incurred by another provision of this covenant; provided that if the Debt being guaranteed is subordinated to or pari passu with Debt incurred under this Agreement or is unsecured, then the guarantee shall be subordinated or pari passu or unsecured to the same extent as the Debt guaranteed;
(p) without limiting Section 3 (Limitation on Liens), Debt arising by reason of any Lien granted by or applicable to such Person securing Debt of the Company or any Restricted Subsidiary so long as the Incurrence of such Debt is permitted under the terms of this Agreement;
(q) Debt owing consisting of (i) the financing of insurance premiums, (ii) take or pay obligations contained in supply agreements or (iii) rental guarantees, in each case, in the ordinary course of business;
(r) guarantees of the obligations of Qualified Joint Ventures at any time outstanding not exceeding the greater of €15.0 million and 3% of Total Assets in aggregate principal amount;
(s) Acquired Debt; provided that, after giving pro forma effect to a Person such acquisition, (i) the Company would have been able to incur €1.00 of additional Debt pursuant to paragraph 1.1 of this Section 1 or (ii) the Consolidated Fixed Charges Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available would be no less than immediately prior to such acquisition and incurrence; and
(t) the Incurrence of Debt by the Company or any Restricted Subsidiary (other than and in addition to Debt permitted under paragraphs 1.2(a) to (s) (inclusive) above) in an aggregate principal amount at any one time outstanding not to exceed €15.0 million.
1.3 For purposes of determining compliance with this Section 1, in the event that an item of Debt meets the criteria of more than one of the categories of Permitted Debt described in paragraphs (a) to (t) (inclusive) of paragraph 1.2 of this Section 1, or is a entitled to be Incurred pursuant to paragraph 1.1 of this Section 1, the Company will be permitted to classify such item of Debt on the date of its Incurrence in any manner that complies with this Section 1. Debt under Credit PartyFacilities outstanding on the date on which the Notes are first issued shall initially be deemed to have been Incurred on such date in reliance on the exception provided by paragraph 1.2(a) of this Section 1. In addition, but only any item of Debt initially classified as Incurred pursuant to one of the categories of Permitted Debt described in paragraphs 1.2(b) to (t) (inclusive) of this Section 1, or is entitled to be Incurred pursuant to paragraph 1.1 of this Section 1, may later be reclassified by the Company such that it shall be deemed as having been Incurred pursuant to such new paragraph or paragraph 1.1 of this Section 1 to the extent permitted under that such reclassified Debt could be Incurred pursuant to such new paragraph or paragraph 1.1 of this Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both 1 at the time of and immediately after giving effect to such reclassification.
1.4 For purposes of determining compliance with any restriction on the incurrence thereof (i) no Default or Event Incurrence of Default shall have occurred and be continuing or result therefrom and (ii) Debt in Euros where Debt is denominated in a different currency, the aggregate amount of all such Debt shall be the Euro Equivalent determined on the date of such determination; provided that if any such Debt denominated in a different currency is subject to a Currency Agreement (with respect to Euros) covering principal amounts payable on such Debt, the amount of such Debt expressed in Euros shall be adjusted to take into account the effect of such agreement. The principal amount of any Permitted Refinancing Debt Incurred in the same currency as the Debt being refinanced shall be the Euro Equivalent of the Debt being refinanced determined on the date such Debt being refinanced was initially Incurred. Notwithstanding any other provision of this Section 1, for purposes of determining compliance with this Section 1, increases in Debt solely due to fluctuations in the exchange rates of currencies shall not be deemed to exceed $1,000,000 at the maximum amount that the Company or a Restricted Subsidiary may Incur under this Section 1.
1.5 For purposes of determining any one time outstandingparticular amount of Debt under this Section 1:
(a) obligations in the form of letters of credit, guarantees or Liens, in each case supporting Debt otherwise included in the determination of such particular amount shall not be included;
(b) any Liens granted pursuant to the equal and ratable provisions referred to in Section 3 (Limitation on Liens) shall not be treated as Debt; and
(c) accrual of interest, accrual of dividends, the accretion or amortization of original issue discount or of accreted value, the obligation to pay commitment fees and the payment of interest or dividends in the form of additional Debt, shall not, in any case, be treated as Debt.
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness The Parent Guarantor shall not, and shall not permit any Restricted Subsidiary to, create, issue, Incur, assume, guarantee or in any manner become directly or indirectly liable with respect to or otherwise become responsible for, contingently or otherwise, the payment of any Credit Party (individually and collectively, to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) “Incur” or, as appropriate, an “Incurrence”), any Debt existing on (including any Acquired Debt); provided that the Effective Date and set forth in Schedule 8.1 attached hereto Parent Guarantor, each Issuer and any renewals or refinancing Restricted Subsidiary shall be permitted to Incur Debt (including Acquired Debt) if in each case (i) after giving effect to the Incurrence of such Debt (provided that (i) and the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount application of the original Debt outstanding proceeds thereof, on the Effective Date (less any principal payments a pro forma basis, no Default or Event of Default would occur or be continuing and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred Incurrence and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof Incurrence of such Debt and the application of the proceeds thereof, on a pro forma basis, the Consolidated Fixed Charge Coverage Ratio for the four full fiscal quarters for which financial statements are available immediately preceding the Incurrence of such Debt, taken as one period, would be greater than 2.0 to 1.0.
(b) This covenant shall not, however, prohibit the following (collectively, “Permitted Debt”):
(i) no Default the Notes and the New Unsecured Notes issued on the Issue Date;
(ii) the Incurrence by the Parent Guarantor or Event any Restricted Subsidiary of Default shall have occurred and be continuing, Debt under Credit Facilities in an aggregate principal amount not to exceed the greater of (i) €350,000,000 and (ii) an amount equal to (I) 85% of Total Receivables plus 60% of Total Inventories less (II) €250,000,000;
(iii) any Existing Debt of the Parent Guarantor or any Restricted Subsidiary (other than Debt described in clauses (i) and (ii) of this paragraph (b)) and any Debt of the Acquired Business existing on the date of completion of the Acquisition;
(iv) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of intercompany Debt between the Parent Guarantor and any Restricted Subsidiary or between or among Restricted Subsidiaries; provided that:
(A) if an Issuer or a Guarantor is the obligor on any such Debt, unless required by a Credit Facility and only to the extent legally permitted, such Debt must be unsecured (except in respect of the intercompany current liabilities Incurred in the ordinary course of business in connection with cash management, cash pooling, tax and accounting operations of the Parent Guarantor and its Restricted Subsidiaries); and
(B) (x) any disposition, pledge or transfer of any such Debt to a Person (other than a disposition, pledge or transfer to the Parent Guarantor or a Restricted Subsidiary) and (y) any transaction pursuant to which any Restricted Subsidiary that has Debt owing by the Parent Guarantor or another Restricted Subsidiary ceases to be a Restricted Subsidiary, will, in each case, be deemed to be an Incurrence of such Debt not permitted by this clause (iv);
(v) guarantees of the Parent Guarantor or any Restricted Subsidiary of Debt of the Parent Guarantor or any Restricted Subsidiary to the extent that the guaranteed Debt was permitted to be incurred by another provision of this Section 4.06 that are made in accordance with the provisions of Section 4.15;
(vi) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt represented by Capitalized Lease Obligations, mortgage financings, purchase money obligations or other Debt Incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property or assets, in each case, Incurred for the purpose of financing or refinancing all or any part of the purchase price, lease expense or cost of construction or improvement of property, plant, equipment or other assets used in the Parent Guarantor’s or any Restricted Subsidiary’s business (including any reasonable related fees or expenses Incurred in connection with such acquisition or development); provided that the principal amount of such Debt so Incurred when aggregated with other Debt previously Incurred in reliance on this clause (vi) and still outstanding shall not in the aggregate exceed the greater of €150,000,000 and 2.0% of Total Assets; and provided, further, that the total principal amount of all any Debt Incurred in connection with an acquisition or development permitted under this clause (vi) did not in each case at the time of Incurrence exceed (A) the Fair Market Value of the acquired or constructed asset or improvement so financed or (B) in the case of an uncompleted constructed asset, the amount of the asset to be constructed, as determined on the date the contract for construction of such asset was entered into by the Parent Guarantor or the relevant Restricted Subsidiary (including, in each case, any reasonable related fees and expenses Incurred in connection with such acquisition, construction or development);
(vii) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt at any one time outstanding (arising from agreements providing for guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock (other than guarantees or similar credit support given by the Parent Guarantor or any Restricted Subsidiary of Debt Incurred by any Person acquiring all or any portion of such assets for the type described purpose of financing such acquisition); provided that the maximum aggregate liability in respect of all such Debt permitted pursuant to this clause (c) which is set forth on Schedule 8.1 hereofvii) shall not at no time exceed $5,000,000the net proceeds, and any renewals or refinancings including non-cash proceeds (the Fair Market Value of such Debt on terms substantially the same or better than those in effect non-cash proceeds being measured at the time of received and without giving effect to any subsequent changes in value) actually received from the original incurrence sale of such Debtassets;
(dviii) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt under any Commodity Hedging Transactions, provided that such transaction is Agreements entered into for risk management purposes in the ordinary course of business and not for speculative purposes;
(eix) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt arising from judgments or decrees under Currency Agreements entered into in the ordinary course of business and not deemed to be a Default or Event of Default under subsection (g) of Section 9.1for speculative purposes;
(fx) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt owing to a Person that is a Credit Party, but only to under Interest Rate Agreements entered into in the extent permitted under Section 8.7 hereofordinary course of business and not for speculative purposes;
(gxi) the Comerica Incurrence of Debt by the Parent Guarantor or any Restricted Subsidiary of Debt in respect of workers’ compensation and claims arising under similar legislation, or pursuant to self-insurance obligations and not in connection with the Subordinated Debtborrowing of money or the obtaining of advances or credit;
(hxii) the Incurrence of Debt by the Parent Guarantor or any Restricted Subsidiary arising under from (A) the Surety Agreementshonoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Debt is extinguished within five Business Days of Incurrence, (B) bankers’ acceptances, performance, surety, judgment, completion, payment, appeal or similar bonds, instruments or obligations, (C) completion guarantees, advance payment, customs, VAT or other tax guarantees or similar instruments provided or letters of credit obtained by the Borrowers shall promptly terminate Parent Guarantor or any Restricted Subsidiary in the Liberty Mutual Indemnity Agreement ordinary course of business, and any other Bond Documents related thereto following (D) the completion financing of insurance premiums in the construction projects set forth on Schedule 8.1(i)ordinary course of business;
(xiii) any Debt of the Parent Guarantor or any Restricted Subsidiary Incurred pursuant to any Permitted Receivables Financing;
(xiv) the Incurrence by a Person of Permitted Refinancing Debt in exchange for or the net proceeds of which are used to refund, replace or refinance Debt Incurred by it pursuant to, or described in, paragraphs (a), (b)(i) and (b)(iii), this paragraph (b)(xiv) and paragraphs (b)(xviii), (b)(xix) and (b)(xx) of this Section 4.06, as the case may be;
(xv) guarantees by the Parent Guarantor or a Restricted Subsidiary of Debt Incurred by Permitted Joint Ventures in an aggregate principal amount at any one time outstanding not to exceed an amount equal to €75,000,000;
(xvi) cash management obligations and Debt in respect of netting services, pooling arrangements or similar arrangements in connection with cash management in the ordinary course of business consistent with past practice;
(xvii) (i) additional unsecured take-or-pay obligations in the ordinary course of business, (ii) customer deposits and advance payments in the ordinary course of business received from customers for goods or services purchased in the ordinary course of business and (iii) manufacturer, vendor financing, customer and supply arrangements in the ordinary course of business;
(xviii) the Incurrence of Debt by the Parent Guarantor or any Restricted Subsidiary (other than and in addition to Debt permitted under clauses (i) through (xvii) above and clauses (xix) and (xx) below) in an aggregate principal amount at any one time outstanding not to exceed, together with any Permitted Refinancing Debt in respect thereof, the greater of €265,000,000 and 3.5% of Total Assets;
(xix) Debt of any Person (x) Incurred and outstanding on the date on which such Person becomes a Restricted Subsidiary of the Parent Guarantor or another Restricted Subsidiary of the Parent Guarantor or is merged, consolidated, amalgamated or otherwise described abovecombined with (including pursuant to any acquisition of assets and assumption of related liabilities) the Parent Guarantor or any Restricted Subsidiary or (y) Incurred to provide all or any portion of the funds utilized to consummate the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Parent Guarantor or a Restricted Subsidiary; provided, provided however, with respect to each of clause (xix)(x) and (xix)(y), that both at the time of and immediately such acquisition or other transaction (1) the Parent Guarantor would have been able to Incur €1.00 of additional Indebtedness pursuant to Section 4.06(a) after giving effect to the incurrence thereof Incurrence of such Indebtedness pursuant to this clause (ixix) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii2) the aggregate amount Fixed Charge Coverage Ratio of all the Parent Guarantor and its Restricted Subsidiaries would not be less than it was immediately prior to giving pro forma effect to such Debt shall not exceed $1,000,000 at any one time outstanding.acquisition or other transaction; and
Appears in 1 contract
Limitation on Debt. Create(a) Notwithstanding anything contained in Section 4.09(b), incurprior to the Merger and Release, assume or suffer to exist the Company shall not Incur any Debt (including Acquired Debt), except for the Senior Subordinated Notes, the Senior Notes and Debt Incurred in connection with the Credit Facility Escrow Arrangements.
(b) From and after the Release and the Merger, the Company shall not, and shall not permit any Restricted Subsidiary to, Incur any Debt; provided, excepthowever, that the Company and any Subsidiary Guarantor may Incur Debt and the Company and any Restricted Subsidiary may Incur Acquired Debt if, after giving effect to the Incurrence of such Debt and the application of the proceeds therefrom, the Leverage Ratio of the Company and the Restricted Subsidiaries (on a consolidated basis) would not exceed 6.0 to 1.0.
(c) Notwithstanding Section 4.09(b), any or all of the following Debt (collectively, "Permitted Debt") may be Incurred:
(1) Debt of the Company or any Subsidiary Guarantor under the Credit Facility; provided that the aggregate principal amount of all such Debt under the Credit Facility shall not exceed $1.525 billion less the amount of any permanent mandatory repayments made under the Credit Facility (and, in the case of any revolving subfacility thereunder, permanent commitment reductions) with Net Available Cash from Asset Sales;
(a) Indebtedness of after giving effect to the Special Pro Rata Redemption, the Senior Subordinated Notes and related Guarantees (excluding any Credit Party Additional Senior Subordinated Notes) and any Senior Subordinated Notes and related Guarantees issued in exchange for the Senior Subordinated Notes and related Guarantees pursuant to Agent the Registration Rights Agreement and (b) the Lenders under this Agreement and/or Senior Notes and related Guarantees (excluding any Additional Senior Notes (as such term is defined in the other Loan Documentsindenture relating to the Senior Notes)) and any Senior Notes and related Guarantees issued in exchange for the Senior Notes and related Guarantees pursuant to the Registration Rights Agreement;
(b3) Debt of the Company or any Debt existing on the Effective Date Restricted Subsidiary in respect of Capital Lease Obligations and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (Purchase Money Debt, provided that that:
(i) the aggregate principal amount of such renewed or refinanced Debt shall secured thereby does not exceed the Fair Market Value (on the date of the Incurrence thereof) of the Property acquired, constructed or leased, and
(ii) the aggregate principal amount of all Debt Incurred and then outstanding pursuant to this Section 4.09(c)(3) (together with all Permitted Refinancing Debt Incurred and then outstanding in respect of Debt previously Incurred pursuant to this Section 4.09(c)(3)) does not exceed $30 million;
(4) Debt of the original Company owing to and held by any Subsidiary Guarantor and Debt outstanding on of a Restricted Subsidiary owing to and held by the Effective Date Company or any Subsidiary Guarantor; provided, however, that (less a) any principal payments and the amount subsequent issue or transfer of Capital Stock or other event that results in any such Subsidiary Guarantor ceasing to be a Subsidiary Guarantor or any subsequent transfer of any commitment reductions made thereon on such Debt (except to the Company or prior a Subsidiary Guarantor) shall be deemed, in each case, to constitute the Incurrence of such renewal or refinancing), Debt by the issuer thereof not permitted by this Section 4.09(c)(4) and (iib) the renewal or refinancing of such Debt shall be on substantially expressly subordinated to the same prior payment in full in cash of all obligations under the Senior Subordinated Notes or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time Subsidiary Guarantee of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such DebtSubsidiary Guarantor;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d5) Debt under any Hedging Transactions, provided that such transaction is Interest Rate Agreements entered into by the Company or a Restricted Subsidiary for the purpose of limiting interest rate risk in the ordinary course of the financial management purposes of the Company or any Restricted Subsidiary and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, ; provided that the Borrowers shall promptly terminate obligations under such agreements are directly related to payment obligations on Debt otherwise permitted by the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion terms of the construction projects set forth on Schedule 8.1(i)this Section 4.09;
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstanding.
Appears in 1 contract
Samples: Indenture (Donnelley R H Inc)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Credit Party Debt or Disqualified Stock, and will not permit any of its Restricted Subsidiaries that are not Guarantors to Agent Incur any Preferred Stock (other than Disqualified Stock or Preferred Stock of Restricted Subsidiaries held by the Company or a Restricted Subsidiary, so long as it is so held); provided that the Company or any Restricted Subsidiary may Incur Debt, Disqualified Stock or Preferred Stock if, on the date of the Incurrence, after giving effect to the Incurrence and the Lenders receipt and application of the proceeds therefrom, the Fixed Charge Coverage Ratio is not less than 2.0 to 1.0 (the “Fixed Charge Coverage Test”); provided, further, that the maximum aggregate principal amount of Debt, Disqualified Stock or Preferred Stock that non-Guarantors may incur under this Agreement and/or the other Loan Documents;paragraph (a) is $25.0 million outstanding at any time.
(b) Notwithstanding the foregoing, the Company and, to the extent provided below, any Restricted Subsidiary may Incur the following (“Permitted Debt”):
(1) Debt existing (“Permitted Bank Debt”) of the Company or any Restricted Subsidiary pursuant to Credit Facilities (and, without duplication, Guarantees of such Debt by the Company or any Restricted Subsidiary), including the amount of any outstanding revolving credit loans; provided that the aggregate principal amount at any time outstanding does not exceed the greater of (x) $200.0 million and (y) an amount such that, on a pro forma basis after giving effect to the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing Incurrence of such Debt (and application of the net proceeds therefrom), the Secured Debt Ratio would be no greater than 2.5 to 1.0, less (i) any amount of such Debt permanently repaid as provided under Section 4.10 and (ii) the outstanding principal amount of any Permitted Receivables Financing;
(2) Debt of the Company or any Restricted Subsidiary to the Company or any Restricted Subsidiary so long as such Debt continues to be owed to the Company or a Restricted Subsidiary and which, if the obligor is the Company or a Guarantor and such Debt is owed to a non-Guarantor, is subordinated in right of payment to the Notes;
(3) Debt of the Company pursuant to the Notes (other than Additional Notes) and Debt of any Guarantor pursuant to a Note Guaranty of the Notes (including Additional Notes) and Exchange Notes (and Note Guarantees) in respect thereof;
(4) Debt, Disqualified Stock or Preferred Stock (“Permitted Refinancing Debt”) of the Company or any Restricted Subsidiary constituting an extension or renewal of, replacement of, or substitution for, or issued in exchange for, or the net proceeds of which are used (or will be used within 90 days) to repay, redeem, repurchase, refinance or refund, including by way of defeasance (all of the above, for purposes of this clause, “refinance”) then outstanding Debt, Disqualified Stock or Preferred Stock in an amount not to exceed the principal amount or liquidation value of the Debt, Disqualified Stock or Preferred Stock so refinanced, plus premiums, fees and expenses; provided that
(A) in case Debt to be refinanced is subordinated in right of payment to the Notes, the new Debt, by its terms or by the terms of any agreement or instrument pursuant to which it is outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Debt to be refinanced is subordinated in right of payment to the Notes;
(B) the new Debt, Disqualified Stock or Preferred Stock does not have a Stated Maturity prior to the earlier of (i) the Stated Maturity of the Debt, Disqualified Stock or Preferred Stock to be refinanced and (ii) one year after the Stated Maturity of the Notes, and the new Debt, Disqualified Stock or Preferred Stock has an Average Life at the time of Incurrence that is not less than the shorter of (x) the remaining Average Life of the Debt, Disqualified Stock or Preferred Stock being refinanced and (y) the Average Life that would result if all payments of principal on the Debt, Disqualified Stock and Preferred Stock being refinanced that were due on or after the date that is one year following the last Stated Maturity of the Notes then outstanding were instead due on such date;
(C) in no event may Debt, Disqualified Stock or Preferred Stock of the Company or any Guarantor be refinanced pursuant to this clause by means of any Debt of any Restricted Subsidiary that is not a Guarantor;
(D) Debt, Disqualified Stock or Preferred Stock Incurred pursuant to clauses (1), (2), (5), (6) and (10) through (16) may not be refinanced pursuant to this clause (4); and
(E) no Debt may be issued to refinance Disqualified Stock or Preferred Stock;
(5) Hedging Agreements of the Company or any Restricted Subsidiary in the ordinary course of business and not entered into for speculation;
(6) Debt of the Company or any Restricted Subsidiary with respect to (A) letters of credit and bankers’ acceptances issued in the ordinary course of business and not supporting other Debt, including letters of credit supporting performance, surety or appeal bonds, workers’ compensation claims, health, disability or other benefits to employees or former employees or their families or property, casualty or liability insurance or self-insurance, and letters of credit in connection with the maintenance of, or pursuant to the requirements of, environmental or other permits or licenses from governmental authorities, or other Debt with respect to reimbursement type obligations regarding workers’ compensation claims; (B) indemnification, adjustment of purchase price, earn-out or obligations incurred in connection with the acquisition or disposition of any business or assets; provided that such Debt is not reflected on the balance sheet of the Company or any of its Restricted Subsidiaries and (C) Guarantees of Debt of (i) suppliers, licensees, franchisees or customers in the ordinary course of business or (ii) joint ventures, in an aggregate principal amount of such renewed or refinanced Debt shall at any time outstanding under this clause (C) not to exceed the aggregate principal amount greater of $75.0 million and 4.0% of Total Assets;
(7) Acquired Debt; provided, that after giving effect to the original Incurrence thereof, (i) the Company could Incur at least $1.00 of Debt outstanding on under the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on Fixed Charge Coverage Test or prior to such renewal or refinancing), (ii) the renewal Fixed Charge Coverage Ratio would be greater than the Fixed Charge Coverage Ratio immediately prior to such Incurrence;
(8) Debt of the Company or refinancing any Restricted Subsidiary outstanding on the Issue Date (and, for purposes of clause (4) (D), not otherwise constituting Permitted Debt);
(9) Debt, Disqualified Stock or Preferred Stock of the Company or any Restricted Subsidiary, which may include Capital Leases, Incurred on or after the Issue Date no later than 365 days after the date of purchase or completion of construction, improvement, repair or replacement of property (real or personal) or equipment (whether through the direct purchase of assets or the Capital Stock of any Person owning such assets) for the purpose of financing all or any part of the purchase price or cost thereof and any related taxes or transaction costs; provided that the principal amount of any Debt Incurred pursuant to this clause may not exceed at any time outstanding (a) the greater of $50.0 million and 4.0% of Total Assets (measured at the time of Incurrence of any such Debt) less (b) the aggregate outstanding amount of Permitted Refinancing Debt Incurred to refinance Debt Incurred pursuant to this clause;
(10) Debt of Foreign Restricted Subsidiaries Incurred on or after the Issue Date in an aggregate principal amount not to exceed $25.0 million at any one time outstanding;
(11) Debt of the Company or any Guarantor consisting of co-issuances or Guarantees of Debt of the Company or any Restricted Subsidiary Incurred under any other clause of this Section 4.04;
(12) Debt, Disqualified Stock or Preferred Stock of the Company or any Restricted Subsidiary Incurred on or after the Issue Date not otherwise permitted in an aggregate principal amount at any time outstanding not to exceed $40.0 million;
(13) Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided that such Debt is extinguished within five Business Days of Incurrence;
(14) Debt of the Company or any Restricted Subsidiary consisting of (A) the financing of insurance premiums or (B) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(15) Debt of the Company or any Restricted Subsidiary supported by a letter of credit or bank guarantee issued pursuant to Credit Facilities (which letter of credit or bank guarantee is Incurred pursuant to clause (1) above) in a principal amount not in excess of the stated amount of such letter of credit;
(16) any Permitted Receivables Financing in an aggregate principal amount at any time outstanding not to exceed (A) the maximum amount of Debt shall permitted to be on substantially Incurred under clause (1) at such time, less (B) the same amount of Debt incurred under clause (1) outstanding at such time; and
(17) Debt issued by the Company or better terms as in effect with respect a Restricted Subsidiary to such Debt on current or former officers, directors or employees thereof or any direct or indirect parent thereof (or their spouses or former spouses or estates or beneficiaries under their estates) to finance the Effective Date, and shall otherwise be in purchase or redemption of Equity Interests of any direct or indirect parent of the Company to the extent permitted by Section 4.05(b)(7).
(c) For purposes of determining compliance with this Agreementcovenant:
(1) in the event that an item of Debt, Disqualified Stock or Preferred Stock (or any portion thereof) meets the criteria of more than one of the categories of Permitted Debt or is entitled to be Incurred pursuant to paragraph (a) of this covenant, the Company, in its sole discretion, will classify and may reclassify (iiibased on circumstances at the time of any such reclassification) such item of Debt, Disqualified Stock or Preferred Stock (or any portion thereof) and will only be required to include the amount and type of such Debt, Disqualified Stock or Preferred Stock in one of the above clauses; and
(2) at the time of such renewal Incurrence, classification or refinancing no Default or Event reclassification, the Company will be entitled to divide, classify and reclassify an item of Default has occurred Debt in more than one of the types of Debt described in paragraphs (a) and is continuing or would result from (b) above; provided that all Debt outstanding under the renewal or refinancing Credit Agreement on the Issue Date will be treated as Incurred on the Issue Date under clause (1) of such Debt;paragraph (b).
(cd) Neither the Company nor any Guarantor may Incur Debt that is subordinate in right of Borrowers or any Subsidiary incurred payment to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals Company or refinancings of the Guarantor unless such Debt on terms substantially is subordinated in right of payment to, the same Notes or better than those the relevant Note Guaranty. This does not apply to distinctions between categories of Debt that exist by reason of any Liens, any customary provisions of any intercreditor arrangements related to subordination of any such Liens or Guarantees securing or in effect at the time favor of the original incurrence some but not all of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstanding.
Appears in 1 contract
Samples: Indenture (Ruby Tuesday Inc)
Limitation on Debt. Create, incur, assume or suffer to exist Neither Borrower nor any Guarantor shall incur any Debt, except:
except for (a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
Obligations, (b) any trade payables incurred in the ordinary course of business, (c) the Debt existing described on the Effective Date and set forth Schedule III hereto, (d) Debt in Schedule 8.1 attached hereto and any renewals or refinancing respect of such Debt (provided that (i) the aggregate principal amount of such renewed taxes, assessments, governmental charges or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments levies and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing)claims for labor, materials and supplies, (ii) judgments or awards which have been in force for less than the renewal applicable appeal period so long as execution is not levied thereunder or refinancing in respect of which Borrower or Guarantor shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such Debt shall be on substantially the same appeal or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreementreview, and (iii) endorsements made in connection with the deposits of items for credit or collection in the ordinary course of business, (e) Debt of a Person outstanding prior to the date on which such Person was acquired by Borrower as a subsidiary, and not incurred in contemplation thereof, provided, that in no event shall the aggregate of all such Debt exceed $2,000,000.00, (f) capitalized lease obligations related to capital expenditures made by Borrower as permitted by Section 7.19 hereof (and so long as such capitalized lease obligations do not cause Borrower to be in violation of any other covenant of this Agreement), (g) Subordinate Acquisition Debt, (h) Permitted Institutional Debt, provided that, (1) the amount of the Permitted Senior Institutional Debt outstanding at any time cannot exceed the lesser of 70% of the aggregate amount of Permitted Institutional Debt outstanding at the time of such renewal determination or refinancing no Default or Event $17,500,000.00, (2) the amount of Default has occurred Permitted Subordinate Institutional Debt outstanding at any time cannot be less than $7,500,000.00, and is continuing or (3) the issuance of said Permitted Institutional Debt would result from otherwise be permitted by the renewal or refinancing other terms and conditions of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assetsCredit Facility, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default the Short Term Debt in existence on the date of the execution of this Agreement (Lenders hereby agreeing that (1) Administrative Agent shall be entitled to execute on behalf of Lenders any documents or Event agreements approved by Administrative Agent acknowledging that the Short Term Debt is included in the Obligations and secured by the Collateral, subject, however, to the provisions of Default Section 9.6 hereof and (2) all or any portion of the proceeds of the Permitted Institutional Debt shall have occurred be used to repay the Short Term Debt and be continuingthen to pay down the Credit Facility), and (iij) the aggregate amount of all such Debt at any one time outstanding (includingrefinancings, without limitation, any Debt renewals or extensions of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially permitted under the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, foregoing clauses provided that such transaction is entered into for risk management purposes and refinancings, renewals or extensions do not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to result in an increase in the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion aggregate unpaid principal amount of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described aboveso refinanced, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default renewed or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstandingextended.
Appears in 1 contract
Samples: Loan Agreement (Monarch Dental Corp)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of The Issuer shall not, and shall not permit any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) Issuer Restricted Subsidiary to, directly or indirectly, Incur any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided Debt; provided, however, that (i) the aggregate principal amount of such renewed Issuer or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such any Issuer Restricted Subsidiary that is a Guarantor and an Offering Proceeds Note Guarantor may incur any Debt shall be on substantially the same or better terms as in if, after giving pro forma effect with respect to such Debt on Incurrence and the Effective Datereceipt and application of the net proceeds thereof, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing occur as a consequence of such DebtIncurrence or be continuing following such Incurrence and the Issuer Debt Ratio would be less than 5.75 to 1.0.
(b) Notwithstanding the foregoing limitation, the Issuer or any Issuer Restricted Subsidiary may Incur any and all of the following (each of which shall be given independent effect):
(i) Debt of the Issuer or any Issuer Restricted Subsidiary under the Securities issued on the Issue Date, any Note Guarantee in respect of the Securities issued on the Issue Date, any Offering Proceeds Note issued in connection with the Securities issued on the Issue Date or any Offering Proceeds Note Guarantee in respect of the Offering Proceeds Note;
(cii) Debt of the Issuer or any Issuer Restricted Subsidiary under Credit Facilities in an aggregate principal amount outstanding or available (together with the amount of all refinancing Debt outstanding or available pursuant to clause (vi) below in respect of Debt previously Incurred pursuant to this clause (ii) (other than any Additional Refinancing Amount)) at any one time not to exceed the greater of (x) $5.011 billion and (y) 4.0 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under Section 905 are available;
(iii) Debt of the Issuer or any Issuer Restricted Subsidiary outstanding on the Measurement Date;
(iv) Debt owed by (A) the Issuer to any Issuer Restricted Subsidiary, (B) any Debt of Borrowers Issuer Restricted Subsidiary to the Issuer or any other Issuer Restricted Subsidiary, provided that in each case of clause (A) and (B), (x) upon the transfer, conveyance or other disposition by such Issuer Restricted Subsidiary incurred to finance or the acquisition Issuer of fixed or capital assets, whether pursuant any Debt so permitted to a loan Person other than the Issuer or a Capitalized Lease provided that both another Issuer Restricted Subsidiary or (y) if for any reason such Issuer Restricted Subsidiary ceases to be an Issuer Restricted Subsidiary, the provisions of clause (A) or clause (B), as applicable, shall no longer be applicable to such Debt and such Debt shall be deemed to have been Incurred by the issuer thereof at the time of and immediately after giving effect such transfer, conveyance or other disposition or when such Issuer Restricted Subsidiary ceases to the incurrence thereof be an Issuer Restricted Subsidiary, (i) no Default or Event of Default shall have occurred and be continuing, and (iiC) the Issuer or any Issuer Restricted Subsidiary to Level 3 Parent in an aggregate amount principal amount, in the case of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall C), not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time excess of the original incurrence greater of such Debt;
(dx) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom $500 million and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstanding.y)
Appears in 1 contract
Samples: Indenture (Level 3 Parent, LLC)
Limitation on Debt. Create(a) The Issuer shall not, and shall not permit any Restricted Subsidiary to, create, issue, incur, assume assume, guarantee or suffer to exist in any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals manner become directly or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect indirectly liable with respect to such or otherwise become responsible for, contingently or otherwise, the payment of (individually and collectively, to “Incur” or, as appropriate, an “Incurrence”), any Debt on (including any Acquired Debt); provided that the Effective Date, Issuer and any Restricted Subsidiary shall otherwise be in compliance with this Agreement, and permitted to incur Debt (iiiincluding Acquired Debt) if at the time of such renewal or refinancing no Default or Event of Default has occurred Incurrence and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof Incurrence of such Debt and the application of the proceeds thereof, on a pro forma basis, the Leverage Ratio would be less than 4.0 to 1.0.
(b) This covenant shall not, however, prohibit the following (collectively, “Permitted Debt”):
(i) no Default the Incurrence by the Issuer or Event any Restricted Subsidiary in reliance on this clause (i) of Default shall have occurred and be continuing, and (ii) the Debt under Credit Facilities in an aggregate principal amount of all such Debt at any one time outstanding not to exceed $1,000.0 million minus, in either case, the amount of any permanent repayments or prepayments of such Debt with the proceeds of Asset Sales made in accordance with Section 4.09 (but only to the extent of any corresponding commitment reduction if such Debt is revolving credit borrowings);
(ii) the Incurrence by the Issuer of Debt pursuant to the Notes (other than Additional Notes) and the Incurrence of Debt by the Guarantors pursuant to the Guarantees;
(iii) any Debt of the Issuer or any Restricted Subsidiary (other than Debt described in another clause of this paragraph) outstanding on the date of this Indenture;
(iv) the Incurrence by the Issuer or any Restricted Subsidiary of intercompany Debt between the Issuer and any Restricted Subsidiary or between or among Restricted Subsidiaries; provided that
(A) if the Issuer or a Guarantor is the obligor on any such Debt, unless required by a Credit Facility, it is unsecured; and
(B) (x) any disposition, pledge or transfer of any such Debt to a Person (other than a disposition, pledge or transfer to the Issuer or a Restricted Subsidiary) and (y) any transaction pursuant to which any Restricted Subsidiary that has Debt owing to the Issuer or another Wholly Owned Restricted Subsidiary ceases to be a Restricted Subsidiary, will, in each case, be deemed to be an Incurrence of such Debt not permitted by this clause (iv);
(v) guarantees of the Issuer’s Debt or Debt of any Restricted Subsidiary by the Issuer or any Restricted Subsidiary that are permitted by and made in accordance with the provisions of Section 4.15;
(vi) the Incurrence by the Issuer or any Restricted Subsidiary of Debt represented by Capitalized Lease Obligations, mortgage financings, purchase money obligations or other Debt Incurred or assumed for the purpose of financing or refinancing all or any part of the purchase price, lease expense or cost of any property or asset, tangible or intangible, including network assets (including switches, towers, software, rights-of-way, intellectual property, licenses, concessions, spectrum and other intangibles and facilities to house network assets) used in the Issuer’s or any Restricted Subsidiary’s business and the capital stock or similar ownership interest of any Person engaged in substantially the same line of business as the Issuer and its Restricted Subsidiaries or reasonably related or ancillary thereto (including the cost of design, development, acquisition, construction (including capitalized interest), installation, improvement, transportation, integration and prepaid maintenance and all reasonable related fees or expenses); provided that the principal amount of such Debt so Incurred when aggregated with other Debt previously Incurred in reliance on this clause (vi) (and Permitted Refinancing Debt with respect thereto) and still outstanding shall not in the aggregate exceed $200.0 million;
(vii) the Incurrence by the Issuer or any Restricted Subsidiary of Debt arising from agreements providing for guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock, other than guarantees or similar credit support given by the Issuer or any Restricted Subsidiary of Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and Incurred by any renewals Person acquiring all or refinancings any portion of such Debt on terms substantially assets for the same or better than those in effect at the time purpose of the original incurrence of financing such Debtacquisition;
(dviii) the Incurrence by the Issuer or any Restricted Subsidiary of Debt under any Hedging Transactions, provided that such transaction is Currency Agreements entered into for risk management purposes in the ordinary course of business and not for speculative purposes;
(ix) the Incurrence by the Issuer or any Restricted Subsidiary of Debt under Interest Rate Agreements entered into in the ordinary course of business and not for speculative purposes;
(x) the Incurrence of Debt by the Issuer or any Restricted Subsidiary of Debt in respect of workers’ compensation and claims arising under similar legislation, or pursuant to self-insurance obligations and not in connection with the borrowing of money or the obtaining of advances or credit;
(xi) the Incurrence of Debt by the Issuer or any Restricted Subsidiary arising from (A) the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Debt is extinguished within 5 Business Days of Incurrence, (B) bankers’ acceptances, performance, surety, judgment, appeal or similar bonds, instruments or obligations, (C) completion guarantees provided or letters of credit obtained by the Issuer or any Restricted Subsidiary in the ordinary course of business; and (D) the financing of insurance premiums in the ordinary course of business;
(xii) the Incurrence by a Person of Permitted Refinancing Debt in exchange for or the net proceeds of which are used to refund, replace or refinance Debt Incurred by it pursuant to, or described in, paragraphs (a), (b)(ii), (b)(iii) and (b)(vi) of this Section 4.06, as the case may be; and
(xiii) the incurrence of Debt by the Issuer or any Restricted Subsidiary in an aggregate amount at any time outstanding not to exceed the greater of (i) $200.0 million and (ii) 5% of Total Assets.
(c) Notwithstanding any other provision of this Section 4.06, for purposes of determining compliance with this Section 4.06, increases in Debt solely due to fluctuations in the exchange rates of currencies will not be deemed to exceed the maximum amount that the Issuer or a Guarantor may Incur under this Section 4.06.
(d) For purposes of determining any particular amount of Debt under this Section 4.06:
(i) obligations with respect to letters of credit, guarantees or Liens, in each case supporting Debt otherwise included in the determination of such particular amount shall not be included;
(ii) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.07 will not be treated as Debt; and
(iii) accrual of interest, accrual of dividends, the accretion of accreted value, the obligation to pay commitment fees and the payment of interest in the form of additional Debt will not be treated as Debt.
(e) In the event that an item of Debt arising from judgments meets the criteria of more than one of the types of Debt described in this Section 4.06, the Issuer, in its sole discretion, shall classify items of Debt and shall only be required to include the amount and type of such Debt in one of such clauses and the Issuer shall be entitled to divide and classify an item of Debt in more than one of the types of Debt described in this Section 4.06, and may change the classification of an item of Debt (or decrees not deemed any portion thereof) to be a Default or Event any other type of Default under subsection (g) of Debt described in this Section 9.1;4.06 at any time.
(f) The Guarantors will not Incur, create, issue, assume, guarantee or otherwise become liable for any Debt owing to a Person that is a Credit Party, but only subordinate or junior in right of payment to any Senior Debt of the Guarantors and senior in any respect in right of payment to the extent permitted under Section 8.7 hereof;Guarantees or any other Pari Passu Debt of the Guarantors, provided that the foregoing limitation will not apply to distinctions between categories of Senior Debt that exist by reason of any Liens or guarantees arising or created in respect of some but not all of such Senior Debt.
(g) the Comerica Debt The Issuer will not, and the Subordinated Debt;
(h) Debt arising under the Surety Agreementswill not permit any Restricted Subsidiary to, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
Incur (i) additional unsecured Debt secured by a Lien on any assets of the Issuer, (ii) Senior Debt of a Guarantor or (iii) Debt of a Restricted Subsidiary that is not otherwise described abovea Guarantor, provided that both other than, in each case, Permitted Debt (other than Permitted Debt Incurred under clause (b)(i) of Section 4.06), if, at the time of such Incurrence and immediately after giving effect to the incurrence thereof (i) no Default or Event Incurrence of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstandingand the application of the proceeds thereof, on a pro forma basis, the Priority Debt Leverage Ratio would be greater than 3.00 to 1.0.
Appears in 1 contract
Samples: Indenture (Digicel Group LTD)
Limitation on Debt. CreatePrior to the Final Rate Case Determination Date, incurincur any additional Debt (other than the Senior Secured Notes, assume or suffer to exist Debt incurred under this Agreement and Limited Equipment Indebtedness). After the Final Rate Case Determination Date, the Borrower shall not incur any additional Debt (other than Subordinated Debt, except:
) unless (a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing continuing, or would result from exist immediately after giving effect to, the renewal or refinancing incurrence of such Debt and (b) it is in full compliance with Sections 7.3, 7.4 and 7.5 both immediately prior, and immediately after giving effect, to the incurrence of any such Debt;
, and the use of proceeds from such incurrence (ccalculated, in each case, on a Pro Forma Basis as of the last day of the fiscal quarter most recently ended for which compliance with such Sections shall have been determined); provided, that (i) any Debt if a Default or an Event of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both Default shall have occurred and be continuing at the time of and immediately the incurrence of any Subordinated Debt, the net proceeds from the incurrence of such Subordinated Debt shall be applied to cure such Default or Event of Default to the extent such Default or Event of Default, after giving pro forma effect to the incurrence thereof of such Subordinated Debt, can be so cured, and (iii) no Default or if a Payment Event of Default shall have occurred and be continuing, no such Subordinated Debt shall be incurred. Any such additional Debt permitted by the preceding sentence (other than (A) any bank or other credit facilities (whether of a revolving nature or not) between the Borrower and (ii) any lenders under which facilities the aggregate borrowings outstanding, the face amount of all any letters of credit outstanding and any unfunded commitments to extend credit exceed, in the aggregate, $70,000,000 or (B) any Subordinated Debt) may be secured on a pari passu basis with the Obligations hereunder and the Senior Secured Notes pursuant to the terms and conditions of the First Mortgage Indenture (any such Debt secured Debt, "Permitted Additional Senior Secured Debt"). Further, the Borrower shall not, at any one time outstanding time, enter into (including, without limitation, 1) any Debt Hedging Agreement for speculative purposes or (2) any Hedging Agreement if the obligations of the type described Borrower relating thereto would not be reflected in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time calculation of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed Borrower's revenue requirement to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising collected under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstandingOATT.
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness The Company shall not, and shall not permit any Subsidiary of the Company to, Issue, directly or indirectly, any Credit Party Debt; provided, however, that the Company and its Subsidiaries shall be permitted to Agent and Issue Debt if, at the Lenders under this Agreement and/or time of such Issuance, the other Loan Documents;Consolidated EBITDA Coverage Ratio for the period of the most recently completed four consecutive fiscal quarters ending at least 45 days prior to the date such Debt is Issued exceeds the ratio of 2.0 to 1.0.
(b) Notwithstanding the foregoing, the Company and its Subsidiaries may Issue the following Debt:
(1) Debt Issued pursuant to the Credit Agreement and the Securities, any Debt existing on the Effective Date and set forth Refinancing thereof, or any other credit agreement, indenture or other agreement, in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the an aggregate principal amount outstanding at any one time not to exceed an amount equal to $675 million less the sum of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any all principal payments and the amount of any commitment reductions (whether by prepayment, repayment or purchase) made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on pursuant to Section 4.07(a)(iii)(A), (a)(iii)(B)(1) or (a)(iii)(C) to the Effective Dateextent that such payments (i) are as a result of an Asset Disposition involving assets that are included in the Collateral, and shall otherwise be or are owned, directly or indirectly, by a Foreign Subsidiary the stock of which is included in compliance with this Agreementthe Collateral, and (iiiii) at permanently retire such Debt in accordance with the time terms of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of agreements governing such Debt;
(c2) Debt Issued on an unsecured basis pursuant to any other credit agreement, indenture or other agreement in an aggregate principal amount not to exceed $225 million outstanding at any one time;
(3) Debt (other than Debt described in clauses (1) and (2) above) in respect of Borrowers the undrawn portion of the face amount of or unpaid reimbursement obligations in respect of letters of credit for the account of the Company or any Subsidiary incurred of its Subsidiaries in an aggregate amount at any time outstanding not to finance exceed the acquisition excess of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and $150 million over (ii) the aggregate undrawn portion of the face amount of all such Debt at or unpaid reimbursement obligations in respect of letters of credit Issued under the Credit Agreement or any one time outstanding Refinancing thereof or any other credit agreement, indenture or other agreement pursuant to clause (including, without limitation, any 1) above;
(4) Debt of the type described Company Issued to and held by a Wholly Owned Recourse Subsidiary of the Company and Debt of a Subsidiary of the Company Issued to and held by the Company or a Wholly Owned Recourse Subsidiary; provided, however, that any subsequent Issuance or transfer of any Capital Stock that results in any such Wholly Owned Recourse Subsidiary ceasing to be a Wholly Owned Recourse Subsidiary or any subsequent transfer of such Debt (other than to the Company or a Wholly Owned Recourse Subsidiary) shall be deemed, in each case, to constitute the Issuance of such Debt by the Company or of such Debt by such Subsidiary;
(5) Debt of the Company consisting of the Existing 9% Senior Securities, the Existing 8-1/8% Senior Securities, the Existing Senior Subordinated Securities and Debt of the Company Issued to Refinance any Debt permitted by this clause (c5); provided, however, that, in the case of a Refinancing, the principal amount of the Debt so Issued shall not exceed the principal amount of the Debt so Refinanced plus any Refinancing Costs thereof; provided further, however, that any Debt Issued pursuant to this clause (5) which is to Refinance the Existing Senior Subordinated Securities or any Refinancing thereof shall be subordinated to the Securities to at least the same extent as the Existing Senior Subordinated Securities are subordinated to the Securities;
(6) Debt (other than Debt described in clause (1), (2), (3), (4) or (5) above or (11) or (12) below) of the Company or any of its Subsidiaries outstanding on the Issue Date, as set forth on Schedule 8.1 hereofIII hereto, and Debt Issued to Refinance any Debt permitted by this clause (6) or by Section 4.03(a); provided, however, that, in the case of a Refinancing, the principal amount of the Debt so Issued shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time principal amount of the original incurrence of such DebtDebt so Refinanced plus any Refinancing Costs thereof;
(d7) Debt under Issued and arising out of purchase money obligations for property acquired in an amount not to exceed, for the period through December 31, 2002, $50 million, plus for each period of twelve consecutive months ending on December 31 thereafter, $15 million; provided, however, that any Hedging Transactions, provided that such transaction is entered into for risk management purposes amounts which are available to be utilized during any such twelve month period and are not for speculative purposesso utilized may be utilized during any succeeding period;
(e) 8) Debt arising from judgments of a Subsidiary of the Company Issued and outstanding on or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only prior to the extent permitted under Section 8.7 hereof;
date on which such Subsidiary was acquired by the Company (g) the Comerica other than Debt and the Subordinated Debt;
(h) Debt arising under the Surety AgreementsIssued as consideration in, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and or to provide all or any other Bond Documents related thereto following the completion portion of the construction projects set forth on Schedule 8.1(ifunds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Subsidiary became a Subsidiary of the Company or was acquired by the Company);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstanding.
Appears in 1 contract
Limitation on Debt. CreateThe Borrowers and their Subsidiaries ------------------ (other than the Excluded Subsidiaries) will not incur or be liable with respect to (i) any Debt of a type described in clause (i), incur, assume (ii) or suffer to exist (iv) of the definition of "Debt" in Section 1.01 or (ii) any Guarantee of any such Debt, except:
(a) Indebtedness of any Credit Party to Agent and Debt outstanding under the Lenders under this Agreement and/or the other Loan Financing Documents;
(b) Permitted Intercompany Debt;
(c) Prepetition Indebtedness without giving effect to any extensions, renewals, refinancings, supplemental borrowings or other incurrences thereof;
(d) Debt existing on consisting of trade obligations arising in the Effective ordinary course of business after the Petition Date; and
(e) Guarantees by MHG of post-Petition Date obligations of other Borrowers in the ordinary course of business;
(f) Debt incurred in connection with the rejection of unexpired leases and set forth executory contracts in Schedule 8.1 attached hereto and the Chapter 11 Cases; provided, that the obligation of any renewals or refinancing Borrower in respect of such Debt shall qualify as a general, unsecured, non-priority claim pursuant to appropriate order of the Court;
(g) Not more than $500,000 of unsecured Debt at any time outstanding which is not otherwise permitted pursuant to this Section 7.01; and
(h) Debt (x) in respect of Capital Leases or (y) secured by Liens permitted under Section 7.02(g), provided that (i) such Debt is incurred to finance necessary capital expenditures of the MHG Companies in the ordinary course of business, (ii) the aggregate principal amount of such renewed or refinanced Debt Debt, together (without duplication) with any Consolidated Capital Expenditures made during the relevant period, shall not exceed the aggregate principal maximum amount of set forth in Section 6.05 for the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreementrelevant period, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers expenditures made in connection therewith shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects be set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at in the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstandingCash Budget.
Appears in 1 contract
Samples: Debtor in Possession Credit Agreement (Mariner Post Acute Network Inc)
Limitation on Debt. CreateThe Company will not, incurat any time, assume or suffer to exist any Debt, except:
permit Subsidiary Debt (a) including Indebtedness of a Subsidiary under any Credit Party HGI Facility) to Agent and exceed an amount equal to 20% of Consolidated Total Net Worth as of the Lenders under this Agreement and/or end of the other Loan Documents;
(b) any Debt existing on then most recently ended fiscal quarter of the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (Company; provided that in no event shall the amount of Subsidiary Debt permitted pursuant to this Section 10.3 at any time exceed the amount of Subsidiary Debt then permitted to be outstanding under the Credit Agreement (without giving effect to any amendment or waiver thereof entered into after the occurrence and during the continuance of a Default or Event of Default). The Company will not at any time, permit the incurrence of any Indebtedness unless (i) the aggregate principal amount Consolidated Debt to Capitalization Ratio as of the most recently ended fiscal quarter prior to the incurrence of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding Indebtedness, calculated on a pro forma basis, after giving effect to such incurrence as if such incurrence had occurred on the Effective Date (less any principal payments and the amount first day of any commitment reductions made thereon on or prior such fiscal quarter, shall be no greater than 0.60 to such renewal or refinancing)1.00, (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of immediately before and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred such Indebtedness and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt use of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000proceeds thereof, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (iiiii) solely in connection with any Indebtedness used to refinance a portion (but less than all) of the aggregate amount of all Notes, such Debt Indebtedness shall not exceed $1,000,000 at any one time outstandinghave terms, other than pricing, more favorable to the providers of such Indebtedness than the terms of this Agreement unless consented to by the Required Holders.
Section 1.6 Section 10.15 of the Note Purchase Agreement shall be amended and restated in its entirety to read as follows:
Appears in 1 contract
Samples: Note Purchase Agreement (Essential Utilities, Inc.)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), ) and (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers Borrower or any Subsidiary of its Subsidiaries incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease and Debt incurred or assumed in connection with a Permitted Acquisition (any such debt, “CAPEX Debt”), provided that both at the time of and immediately after giving effect to the incurrence thereof (iY) no Default or Event of Default shall have occurred and be continuing, and (iiZ) the aggregate amount of all such CAPEX Debt at any one time outstanding shall not exceed the sum of (including, without limitation, any Debt i) the remaining balance of the type described in this clause (c) CAPEX Debt which is set forth on Schedule 8.1 hereofplus (ii) shall not exceed $5,000,0001,500,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such CAPEX Debt;
(d) existing Subordinated Debt;
(e) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(ef) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(fg) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;8.6; and
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 500,000 at any one time outstanding.
Appears in 1 contract
Samples: Credit Agreement (Universal Truckload Services, Inc.)
Limitation on Debt. CreateNone of the Consolidated Parties ------------------ will, or will permit any of their respective Subsidiaries to, incur, create, assume or suffer permit to exist any Debt, Debt or Derivatives Obligations except:
(aii) Indebtedness Debt of any the Credit Party to Agent and the Lenders Parties under this Agreement and/or and the other Loan Credit Documents;
(biii) any purchase money Debt existing on (including Capital Leases) or Synthetic Leases of the Borrower and its Subsidiaries incurred after the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing to finance the purchase of such Debt (capital assets acquired after the Effective Date; provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (iiA) the aggregate amount of all such Debt (together -------- with refinancings thereof permitted by clause (v) below) does not exceed ---------- $22,500,000 at any one time outstanding outstanding, (includingB) the Debt when incurred shall not be more than 100% of the lesser of the cost or fair market value as of the time of acquisition of the asset financed, without limitation(C) such Debt is issued and any Liens securing such Debt are created concurrently with, or within 90 days after, the acquisition of the asset financed and (D) no Lien securing such Debt shall extend to or cover any property or asset of any Consolidated Party other than the asset so financed;
(iv) Debt of the type Borrower or its Subsidiaries secured by Liens permitted by Sections 7.02(x), (xi) and (xii) in an aggregate outstanding ---------------- ---- ----- principal amount (together with refinancings thereof permitted by clause ------ (v) below) not exceeding $5,000,000; provided that (A) such Debt was not --- -------- incurred in connection with, or in anticipation of, the events described in such Sections and (B) such Debt does not constitute debt for borrowed money (it being understood that Capital Leases, Synthetic Leases and purchase money Debt shall not constitute debt for borrowed money solely for purposes of this clause (civ)); ------------
(v) which is set forth on Schedule 8.1 hereofDebt of the Borrower or its Subsidiaries representing a refinancing, replacement or refunding of Debt permitted by clause (i), ---------- (iii), or (iv) shall above; provided that the aggregate principal amount of such ----- -- ---- -------- Debt outstanding or available and the interest rate per annum payable by the Borrower and its Subsidiaries with respect to such Debt will not exceed $5,000,000be increased, and any renewals or refinancings the weighted average remaining life to maturity of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence will not be decreased by reason of such Debtrefinancing, replacement or refunding;
(dvi) Debt Derivatives Obligations of the Borrower or any Subsidiary under any Hedging Transactions, provided that such transaction is Derivatives Agreements to the extent entered into for risk management purposes before or after the Effective Date in compliance with Section 6.12 or to manage interest rate, ------------ foreign currency exchange rates or fuel prices and not for speculative purposes;
(evii) Debt arising from judgments or decrees not deemed consisting of Guarantees (A) by the Borrower of Debt and leases permitted to be a Default incurred by Wholly-Owned Domestic Subsidiaries of the Borrower (B) by Domestic Subsidiaries of the Borrower of Debt and leases permitted to be incurred by the Borrower or Event Wholly-Owned Domestic Subsidiaries of Default under subsection the Borrower and (gC) by Foreign Subsidiaries of Section 9.1Debt and leases permitted to be incurred by Wholly-Owned Foreign Subsidiaries of the Borrower;
(fviii) Debt owing to the Borrower or a Person that is a Credit Party, but only Subsidiary of the Borrower to the extent permitted under by Section 8.7 hereof;7.06(a)(x), (xi) or (xii); ------------------ ---- -----
(gix) Debt of the Comerica Debt Borrower, the Co-Issuer and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion Subsidiary Guarantors in respect of the construction projects set forth on Schedule 8.1(iSenior Subordinated Notes (but not including any renewal, refinancing or extension thereof);
(ix) additional unsecured Debt incurred by any Subsidiary which is not a Wholly-Owned Subsidiary in an aggregate principal amount for all such Subsidiaries not exceeding $15,000,000 at any time outstanding; 103
(xi) Debt of the Borrower or any of its Subsidiaries in respect of performance, appeal and surety bonds, completion guarantees, insurance bonds and other similar bonds provided by the Borrower or such Subsidiary in the ordinary course of business;
(xii) Debt by the Borrower or any of its Subsidiaries arising from agreements of the Borrower or such Subsidiary providing for, and in respect of, indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or Capital Stock of a Subsidiary permitted under this Agreement or any other Loan Document, but excluding Guaranty Obligations in respect 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; provided that: (A) such Debt is -------- ---- not reflected on the balance sheet of the Borrower or any of its Subsidiaries (contingent obligations referred to in a footnote or footnotes to financial statements and not otherwise described above, provided reflected on the balance sheet will not be deemed to be reflected on that both balance sheet for purpose of this clause (A); and (B) the maximum assumable liability in respect of that Debt shall at no time exceed the gross proceeds including noncash proceeds (the fair market value of those noncash proceeds being measured at the time of received and immediately after without giving effect to any subsequent changes in value) actually received by the incurrence thereof Borrower and/or that Subsidiary in connection with that disposition; and
(ixiii) Debt of the Borrower and its Subsidiaries not otherwise permitted by this Section incurred after the Effective Date in an aggregate principal amount not to exceed $20,000,000 at any time outstanding; provided that (A) the credit documentation with respect to such Debt shall -------- not contain covenants or default provisions relating to the Borrower or any of its Subsidiaries that are more restrictive than the covenants and default provisions contained in the Credit Documents, (B) no Default or Event of Default shall have occurred and be continuing or result therefrom immediately before and immediately after giving effect to such incurrence and (iiC) the aggregate amount Borrower shall have delivered to the Administrative Agent a certificate demonstrating that, upon giving effect on a Pro-Forma Basis to the incurrence of all such Debt and to the concurrent retirement of any other Debt of any Consolidated Party, the Credit Parties shall not exceed $1,000,000 at any one time outstanding.be in compliance with the financial covenants set forth in Section 7.18. ------------
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness The Company will not, and will not permit any of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) its Restricted Subsidiaries to, Incur any Debt existing or Disqualified Stock, and will not permit any of its Restricted Subsidiaries that are not Guarantors to Incur any Preferred Stock (other than Disqualified or Preferred Stock of Restricted Subsidiaries held by the Company or a Restricted Subsidiary, so long as it is so held); provided that the Company or any Restricted Subsidiary may Incur Debt, Disqualified Stock or Preferred Stock if, on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount date of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing)Incurrence, (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof Incurrence and the receipt and application of the proceeds therefrom, (x) the Fixed Charge Coverage Ratio is not less than 2.0 to 1.0 (the “Fixed Charge Coverage Test”) or (y) the Leverage Ratio is not greater than 4.0 to 1.0; provided further that the maximum aggregate principal amount of Debt, Disqualified Stock or Preferred Stock that non-Guarantors may incur under this paragraph (a) is $100.0 million outstanding at any time.
(b) Notwithstanding the foregoing, the Company and, to the extent provided below, any Restricted Subsidiary may Incur the following (“Permitted Debt”):
(1) Debt (“Permitted Bank Debt”) of the Company or any Restricted Subsidiary pursuant to Credit Facilities (and, without duplication, Guarantees of such Debt by the Company or any Restricted Subsidiary); provided that the aggregate principal amount at any time outstanding does not exceed the greater of (x) $800.0 million and (y) an amount such that, on a pro forma basis after giving effect to the Incurrence of such Debt (and application of the net proceeds therefrom), the Secured Debt Ratio (with all Debt Incurred under this clause (1) deemed to be secured for this purpose) would be no greater than 2.5 to 1.0, less (i) no Default or Event any amount of Default shall have occurred and be continuing, such Debt permanently repaid as provided under Section 4.10 and (ii) the aggregate outstanding principal amount of all such Debt at any one time outstanding Permitted Receivables Financing;
(including, without limitation, any 2) Debt of the type described Company or any Restricted Subsidiary to the Company or any Restricted Subsidiary so long as such Debt continues to be owed to the Company or a Restricted Subsidiary and which, if the obligor is the Company or a Guarantor and such Debt is owed to a non-Guarantor (other than a Regulated Subsidiary), is subordinated in right of payment to the Notes;
(3) Debt of the Company pursuant to the Notes (other than Additional Notes) and Debt of any Guarantor pursuant to a Note Guaranty of the Notes (including Additional Notes) and Exchange Notes (and Note Guarantees) in respect thereof;
(4) Debt, Disqualified Stock or Preferred Stock (“Permitted Refinancing Debt”) of the Company or any Restricted Subsidiary constituting an extension or renewal of, replacement of, or substitution for, or issued in exchange for, or the net proceeds of which are used (or will be used within 90 days) to repay, redeem, repurchase, refinance or refund, including by way of defeasance (all of the above, for purposes of this clause clause, “refinance”) then outstanding Debt, Disqualified Stock or Preferred Stock in an amount not to exceed the principal amount or liquidation value of the Debt, Disqualified Stock or Preferred Stock so refinanced, plus premiums, fees and expenses; provided that
(cA) in case Debt to be refinanced is subordinated in right of payment to the Notes, the new Debt, by its terms or by the terms of any agreement or instrument pursuant to which it is set forth on Schedule 8.1 hereofoutstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Debt to be refinanced is subordinated in right of payment to the Notes;
(B) shall the new Debt, Disqualified Stock or Preferred Stock does not exceed $5,000,000have a Stated Maturity prior to the earlier of (i) the Stated Maturity of the Debt, Disqualified Stock or Preferred Stock to be refinanced and (ii) one year after the Stated Maturity of the Notes, and any renewals the new Debt, Disqualified Stock or refinancings of such Debt on terms substantially Preferred Stock has an Average Life at the same or better than those in effect time at the time of Incurrence that is not less than the original incurrence shorter of (x) the remaining Average Life of the Debt, Disqualified Stock or Preferred Stock being refinanced and (y) the Average Life that would result if all payments of principal on the Debt, Disqualified Stock and Preferred Stock being refinanced that were due on or after the date that is one year following the last Stated Maturity of the Notes then outstanding were instead due on such Debtdate;
(dC) in no event may Debt, Disqualified Stock or Preferred Stock of the Company or any Guarantor be refinanced pursuant to this clause by means of any Debt under of any Restricted Subsidiary that is not a Guarantor;
(D) Debt, Disqualified Stock or Preferred Stock Incurred pursuant to clauses (1), (2), (5), (6) and (10) through (17) may not be refinanced pursuant to this clause (4); and
(E) no Debt may be issued to refinance Disqualified Stock or Preferred Stock;
(5) Hedging Transactions, provided that such transaction is Agreements of the Company or any Restricted Subsidiary not entered into for risk management purposes and not for speculative purposesspeculation;
(e6) Debt arising of the Company or any Restricted Subsidiary with respect to (A) letters of credit and bankers’ acceptances issued in the ordinary course of business and not supporting other Debt, including letters of credit supporting performance, surety or appeal bonds, workers’ compensation claims, health, disability or other benefits to employees or former employees or their families or property, casualty or liability insurance or self-insurance, and letters of credit in connection with the maintenance of, or pursuant to the requirements of, environmental or other permits or licenses from judgments governmental authorities, or decrees other Debt with respect to reimbursement type obligations regarding workers’ compensation claims; (B) indemnification, adjustment of purchase price, earn-out or obligations incurred in connection with the acquisition or disposition of any business or assets and (C) Guarantees of Debt of (i) suppliers, licensees, franchisees or customers in the ordinary course of business or (ii) joint ventures, in an aggregate amount at any time outstanding under this clause (C) not deemed to be a Default or Event exceed the greater of Default under subsection (g) $150.0 million and 4.0% of Section 9.1Total Assets;
(f7) Debt owing to a Person Acquired Debt, provided, that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof Incurrence thereof, (i) no Default the Company could Incur at least $1.00 of Debt under the Fixed Charge Coverage Test or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate Fixed Charge Coverage Ratio would be greater than the Fixed Charge Coverage Ratio immediately prior to such Incurrence;
(8) Debt of the Company or any Restricted Subsidiary outstanding on the Issue Date (and, for purposes of clause (4) (D), not otherwise constituting Permitted Debt);
(9) Debt, Disqualified Stock or Preferred Stock of the Company or any Restricted Subsidiary, which may include Capital Leases, Incurred on or after the Issue Date no later than 365 days after the date of purchase or completion of construction, improvement, repair or replacement of property (real or personal) or equipment (whether through the direct purchase of assets or the Capital Stock of any Person owning such assets) for the purpose of financing all or any part of the purchase price or cost thereof and any related taxes or transaction costs, provided that the principal amount of all such any Debt shall Incurred pursuant to this clause may not exceed $1,000,000 at any one time outstanding.outstanding (a) the greater of $150.0 million and 4.0% of the Total Assets of the Company (measured at the time of Incurrence of any such Debt) less (b) the aggregate outstanding amount of Permitted Refinancing Debt Incurred to refinance Debt Incurred pursuant to this clause;
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except(a) The Company:
(a1) Indebtedness will not, and will not permit any of its Restricted Subsidiaries to, Incur any Credit Party Debt; provided that the Company, the Issuer or any other Restricted Subsidiary may Incur Debt if, on the date of the Incurrence, after giving pro forma effect to Agent the Incurrence and the Lenders under this Agreement and/or receipt and application of the other Loan Documents;
(b) any Debt existing on proceeds therefrom, the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals Leverage Ratio is not greater than 2.75:1.0 or refinancing of such Debt (less than zero; provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall that may be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether Incurred pursuant to a loan the foregoing by Restricted Subsidiaries that are not the Issuer or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) Guarantors shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 100,000,000 at any one time outstanding.
(b) Notwithstanding the foregoing, the Company and, to the extent provided below, any Restricted Subsidiary may Incur the following (“Permitted Debt”):
(1) Debt (“Permitted Bank Debt”) of the Company or any Restricted Subsidiary pursuant to Credit Facilities (including the Senior Credit Facility) and Guarantees of such Debt by any Restricted Subsidiary; provided that the aggregate principal amount at any time outstanding does not exceed $500,000,000, less the amount of any Permitted Receivables Financing to the extent such amount exceeds $150,000,000;
(2) Debt of the Company or any Restricted Subsidiary (other than a Receivables Subsidiary) to the Company or any Restricted Subsidiary so long as such Debt continues to be owed to the Company or a Restricted Subsidiary and which, if the obligor is the Issuer or a Guarantor and the lender is not the Issuer or any Guarantor, is subordinated in right of payment to the Notes or such Guarantor’s Note Guaranty, as applicable;
(3) Debt of the Issuer pursuant to the Notes and Debt of any Guarantor pursuant to a Note Guaranty;
(4) Debt (“Permitted Refinancing Debt”) constituting an extension or renewal of, replacement of, or substitution for, or issued in exchange for, or the net proceeds of which are used to repay, redeem, repurchase, refinance or refund, including by way of defeasance (all of the above, for purposes of this clause, “refinance”), then outstanding Debt in an amount not to exceed the principal amount of the Debt so refinanced, plus interest, premiums, fees and expenses; provided that the net proceeds of any Permitted Refinancing Debt may be held in escrow for a period of up to six months subsequent to being borrowed or issued before being applied to refinance then outstanding Debt; provided, further, that
(A) in case the Debt to be refinanced is subordinated in right of payment to the Notes, the new Debt, by its terms or by the terms of any agreement or instrument pursuant to which it is outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Debt to be refinanced is subordinated to the Notes,
(B) the new Debt does not have a Stated Maturity prior to the Stated Maturity of the Debt to be refinanced, and the Average Life of the new Debt is at least equal to the remaining Average Life of the Debt to be refinanced,
(C) in no event may Debt of the Issuer or any Guarantor be refinanced pursuant to this clause by means of any Debt of any Restricted Subsidiary that is not the Issuer or a Guarantor, and
(D) Debt Incurred pursuant to clauses (1), (2), (5), (6), (10), (11), (12) and (13) may not be refinanced pursuant to this clause;
(5) Hedging Agreements of the Company or any Restricted Subsidiary entered into in the ordinary course of business (A) for the purpose of limiting risks associated with the business of the Company and its Restricted Subsidiaries and (B) in connection with the Company’s Equity Interests providing for payments to current or former directors, officers or employees of the Company and its Restricted Subsidiaries or their heirs or estates;
(6) Debt of the Company or any Restricted Subsidiary with respect to (A) workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion guarantees provided by the Company and its Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Debt with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such incurrence, (B) deferred compensation to employees of the Company or any Restricted Subsidiary incurred in the ordinary course of business consistent with the historical practices of the Company or such Subsidiary; and (C) drawings under any same-day overdraft facilities extended by a bank or other lending institution, provided that any drawing that is not repaid in full on the Business Day following the day that such drawing was made shall not be permitted by this clause (C);
(7) Acquired Debt, provided that after giving pro forma effect to the Incurrence thereof, the Company could Incur at least $1.00 of Debt under the Leverage Ratio set forth in paragraph (a) above;
(8) Debt of the Company or any Restricted Subsidiary outstanding on the Issue Date (and, for purposes of clause (4)(D), not otherwise constituting Permitted Debt);
(9) Debt of the Company or any Restricted Subsidiary, which may include Capital Leases, Incurred on or after the Issue Date no later than 270 days after the date of purchase or completion of construction or improvement of property or other asset for the purpose of financing all or any part of the purchase price or cost of construction or improvement, provided that the principal amount of any Debt Incurred pursuant to this clause may not exceed (A) $250,000,000 less (B) the aggregate outstanding amount of Permitted Refinancing Debt Incurred to refinance Debt Incurred pursuant to this clause;
(10) Debt of the Issuer or any Guarantor consisting of Guarantees of Debt of the Issuer or any Restricted Subsidiary Incurred under any other clause of this covenant;
(11) any Permitted Receivables Financing in an aggregate principal amount at any time outstanding not to exceed (A) $500,000,000, less (B) the amount of Debt incurred under clause (1) outstanding at such time;
(12) Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds; provided that such Debt is extinguished within five Business Days; and
(13) Debt of the Company or any Restricted Subsidiary Incurred on or after the Issue Date not otherwise permitted in an aggregate principal amount at any time outstanding not to exceed 10% of Consolidated Total Assets as of the end of the Company’s most recently completed fiscal quarter.
(c) Notwithstanding any other provision of this Section 4.06, for purposes of determining compliance with this Section 4.06, increases in Debt solely due to fluctuations in the exchange rates of currencies will not be deemed to exceed the maximum amount that the Company or a Restricted Subsidiary may Incur under this Section 4.06. For purposes of determining compliance with any U.S. dollar-denominated restriction on the Incurrence of Debt, the U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred; provided that if such Debt is Incurred to refinance other Debt denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Debt does not exceed the principal amount of such Debt being refinanced. The principal amount of any Debt Incurred to refinance other Debt, if Incurred in a different currency from the Debt being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Debt is denominated that is in effect on the date of such refinancing.
(d) In the event that an item of Debt meets the criteria of more than one of the types of Debt described in this Section 4.06, the Company, in its sole discretion, will classify items of Debt and will only be required to include the amount and type of such Debt in one of such clauses and the Company will be entitled to divide and classify an item of Debt in more than one of the types of Debt described in this Section 4.06, and may change the classification of an item of Debt (or any portion thereof) to any other type of Debt described in this Section 4.06 at any time; provided that Debt under the Senior Credit Facility outstanding on the Issue Date shall be deemed at all times to be incurred under clause (1) of Section 4.06(b) above.
(e) Accrual of interest or dividends, the accretion of accreted value and the payment of interest or dividends in the form of additional Debt of the same class will not be deemed to be an Incurrence of Debt for purposes of this Section 4.06 but will be included in subsequent calculations of the amount of outstanding Debt for purposes of Incurring future Debt.
(f) Neither the Issuer nor any Guarantor may Incur any Debt that is subordinate in right of payment to other Debt of the Issuer or the Guarantor unless such Debt is also subordinate in right of payment to the Notes or the relevant Note Guaranty on substantially identical terms. This does not apply to distinctions between categories of Debt that exist by reason of any Liens or Guarantees securing or in favor of some but not all of such Debt. Unsecured Debt will not be treated as subordinated or junior to secured Debt merely because it is unsecured and senior Debt will not be treated as subordinated or junior to any other senior Debt merely because it has a junior priority with respect to the same collateral.
Appears in 1 contract
Samples: Indenture (Seagate Technology)
Limitation on Debt. Create(a) The Company shall not, incurand shall not permit any Restricted Subsidiary to, assume or suffer Incur any Debt (including Acquired Debt) unless, after giving effect to exist any Debtthe application of the proceeds thereof, excepteither:
(a1) Indebtedness such Debt is Debt of any Credit Party the Company or a Restricted Subsidiary and after giving effect to Agent the Incurrence of such Debt and the Lenders under this Agreement and/or application of the other Loan Documents;proceeds thereof, the Consolidated Interest Coverage Ratio would be greater than 2.0 to 1.0; or
(2) such Debt is Permitted Debt.
(b) Notwithstanding anything to the contrary contained in this Section 1008, any increase in the amount of Debt existing on solely by reason of currency fluctuation shall not be considered an Incurrence of Debt for purposes of this Section 1008. For purposes of determining compliance with this Section 1008, the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate U.S. dollar-equivalent principal amount of such renewed or refinanced Debt denominated in any currency other than U.S. dollars shall not exceed be calculated based on the aggregate principal amount relevant currency exchange rate in effect as of the original date such Debt outstanding on the Effective Date (less any principal payments and is Incurred; provided that the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) Permitted Refinancing Debt denominated in the renewal or refinancing of such same currency as the Debt being Refinanced thereby shall be calculated based on substantially the same or better terms as relevant exchange rate in effect with respect to such as of the date of the Incurrence of the Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debtbeing so Refinanced;
(c) The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Debt in the form of Borrowers additional Debt with the same terms, the accumulation of dividends on Disqualified Stock or any Subsidiary incurred to finance the acquisition Preferred Stock of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect Restricted Subsidiaries (to the incurrence thereof (iextent not paid) no Default and the payment of dividends on Disqualified Stock or Event Preferred Stock of Default shall have occurred and be continuing, and (ii) Restricted Subsidiaries in the aggregate amount form of all such Debt at any one time outstanding (including, without limitation, any Debt additional shares of the type described same class of Disqualified Stock or Preferred Stock of Restricted Subsidiaries will not be deemed to be an Incurrence of Debt or an issuance of Disqualified Stock for purposes of this Section 1008; provided that, in this clause (c) which is set forth on Schedule 8.1 hereof) each case, the amount thereof shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those be included in effect at the time Consolidated Interest Expense of the original incurrence of such Debt;Company as accrued; and
(d) For purposes of determining compliance with this Section 1008, in the event that an item of Debt meets the criteria of more than one of the categories of Permitted Debt described in clauses (a) through (l) of the definition of “Permitted Debt” or is entitled to be incurred pursuant to clause (a)(1) of this Section 1008, the Company shall, in its sole discretion, divide and classify or reclassify such item of Debt (or any part thereof), in any manner that complies with this Section 1008, and such item of Debt will be treated as having been Incurred pursuant to one or more of such categories of Permitted Debt or pursuant to clause (a)(1) of this Section 1008. For purposes of determining any particular amount of Debt under any Hedging Transactionsthis Section 1008, provided that such transaction is entered into for risk management purposes and Guarantees, Liens or obligations, in each case, in support of letters of credit supporting Debt shall not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only included to the extent permitted under Section 8.7 hereof;
(g) such letters of credit are included in the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstandingDebt.
Appears in 1 contract
Samples: Indenture (Sanmina Corp)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to Agent the Agents and the Lenders under this Agreement and/or the other Loan Credit Documents;
(b) any Debt existing on the Effective Closing Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Closing Date (plus any accrued interest, prepayment penalties or fees less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective DateClosing Date (other than with respect to pricing and fees), and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers any Borrower or any Subsidiary of its Subsidiaries incurred to finance the acquisition (other than a Permitted Acquisition) of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof8.1) shall not exceed $5,000,00010,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such DebtDebt (other than with respect to pricing and fees);
(d) Subordinated Debt approved by the Administrative Agent and the Required Lenders;
(e) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(ef) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(fg) Guarantee Obligations by any Credit Party of Debt of any other Credit Party permitted hereunder;
(h) Debt of any Credit Party arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn by such Credit Party in the ordinary course of business against insufficient funds, so long as such Debt is promptly repaid;
(i) Debt in the form of (i) indemnification or similar obligations or (ii) earn-outs, incentive, non-compete, consulting or other similar arrangements and other contingent obligations, in each case, in respect of Permitted Acquisitions or Investments permitted by Section 8.7 (both before or after any liability associated therewith becomes fixed), with any such Debt under clause (ii) above not to exceed $5,000,000 in the aggregate at any one time;
(j) Debt of any Credit Party in respect of workers’ compensation claims, bank guarantees, warehouse receipts or similar facilities, property casualty or liability insurance, take or pay obligations in supply arrangements, self-insurance obligations, performance, bid, customs, government, appeal and surety bonds, completion guaranties and other obligations of a similar nature, in each case in the ordinary course of business;
(k) Debt owing to any insurance company in connection with the financing of insurance premiums permitted by such insurance company in the ordinary course of business to the extent not exceeding $5,000,000 at any one time outstanding;
(l) Debt of any Person that becomes a Credit Party as a part of a Permitted Acquisition after the Closing Date, and extensions, renewals, refinancings and replacements of any such Debt that do not increase the outstanding principal amount thereof (other than by an amount not greater than accrued interest, fees and expenses, including premium and defeasance costs, associated therewith) or shorten maturity, add any Credit Party as a new obligor or new property of any Credit Party as security therefore or result in a decreased average weighted life thereof during the term of this Agreement; provided that (A) such acquired Debt exists at the time such Person becomes a Credit Party and is not created in contemplation of or in connection with such Person becoming a Credit Party, (B) neither any Borrower nor any other Credit Party shall be a new obligor therefore and no new property of any Borrower or any other Credit Party shall provide security therefore and (C) the aggregate amount of such Debt shall not exceed the greater of (x) $10,000,000 and (y) 25.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a pro forma basis);
(m) Debt in respect of overdraft facilities, employee credit card programs, netting services, automatic clearinghouse arrangements and other cash management and similar arrangements in the ordinary course of business;
(n) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof8.7;
(g) the Comerica Debt and the Subordinated Debt;
(ho) Debt arising under Permitted Seller Notes issued as consideration in connection with a Permitted Acquisition, in an aggregate principal amount not to the Surety Agreements, provided that greater of (x) $10,000,000 and (y) 25.0% of Consolidated EBITDA for the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth most recently ended Test Period (calculated on Schedule 8.1(ia pro forma basis);
(p) [reserved];
(q) Debt consisting of unsecured Guarantees of the obligations of Unrestricted Subsidiaries or joint ventures; provided that the sum of (i) the aggregate amount of all such Debt outstanding pursuant to this clause (q) plus (ii) the aggregate amount of all Investments made pursuant to Section 8.7(n) shall not exceed the greater of (x) $15,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a pro forma basis);
(r) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed the greater of (x) $1,000,000 at 5,000,000 and (y) 10.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a pro forma basis); and
(s) additional unsecured Debt of the MLP Borrower and/or Finance Co. not otherwise described above, provided that (i) after giving pro forma effect to the incurrence of such Debt, the Borrowers are in compliance with the financial covenants set forth in Section 7.9 as of the end of the most recent fiscal quarter for which financial statements have been delivered pursuant to Section 7.1; (ii) no Default or Event of Default shall be continuing immediately before or after giving effect to the incurrence of such Debt; (iii) the terms of which Debt do not provide for a maturity date or weighted average life to maturity earlier than 91 days after the Latest Maturity Date, (iv) such Debt is not subject to any one time outstandingamortization payments or any mandatory prepayments or sinking fund payments (other than in connection with a change of control, asset sale or event of loss and customary acceleration rights after an event of default) in each case, prior to the date that is 91 days after the Latest Maturity Date and (iv) such Debt shall not include covenants that are more restrictive to the Credit Parties (as determined in good faith by the MLP Borrower), when taken as a whole, than the terms of this Agreement.
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist The Company shall not Incur any Debt, except:
(a) Indebtedness and shall not permit any Subsidiary of any Credit Party the Company to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) Incur any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing)unless, (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof Incurrence of such Debt and the receipt and application of the proceeds thereof, (i) no Default the Consolidated EBITDA to Interest Ratio of the Company for the last four full fiscal quarters for which quarterly or Event of Default shall have occurred and annual financial statements are available would be continuing, greater than 1.3 to 1 and (ii) the Consolidated Adjusted Net Worth of the Company would be greater than the Minimum Adjusted Net Worth of the Company. Notwithstanding the foregoing limitation, the Company or any Subsidiary of the Company may Incur the following Debt:
(i) Debt Incurred by the Company under its Guarantee of the FCRPC Credit Agreement or by any Subsidiary of the Company under the FCRPC Credit Agreement in an aggregate principal amount of all such Debt at any one time outstanding not to exceed $225 million, and any renewal, extension, refinancing or refunding thereof (including, without limitation, any Debt the replacement of the type described banks under the FCRPC Credit Agreement with a new group of banks) in this clause (c) which is set forth on Schedule 8.1 hereof) shall an amount which, together with any amount remaining outstanding or available under the FCRPC Credit Agreement, does not exceed $5,000,000, and any renewals 225 million; provided that such refinancing or refinancings of such refunding Debt on terms substantially does not have a Weighted Average Life that is less than the same or better than those in effect at the time Weighted Average Life of the original incurrence of such DebtDebt being refinanced or refunded;
(dii) Debt under any Hedging TransactionsPerformance guarantees and performance bonds, provided that such transaction is entered into for risk management purposes surety bonds and not for speculative purposesappeal bonds in each case incurred in the ordinary course of business and consistent with past practices;
(eiii) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1evidenced by the Securities;
(fiv) Debt owing to a Person that is a Credit Party, but only to (other than Debt described in another clause of this paragraph) outstanding on the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion date of original issuance of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately Securities after giving effect to the incurrence application of the proceeds of the Securities;
(v) Debt owed by the Company to any Wholly Owned Subsidiary of the Company for which fair value has been received or Debt owed by a Subsidiary of the Company to the Company or a Wholly Owned Subsidiary of the Company; provided, however, that (a) any such Debt owing by the Company to a Wholly Owned Subsidiary shall be Subordinated Debt evidenced by an intercompany promissory note and (b) upon either (1) the transfer or other disposition by such Wholly Owned Subsidiary or the Company of any Debt so permitted to a Person other than the Company or another Wholly Owned Subsidiary of the Company or (2) the issuance (other than directors' qualifying shares), sale, lease, transfer or other disposition of shares of Capital Stock (including by consolidation or merger) of such Wholly Owned Subsidiary to a Person other than the Company or another such Wholly Owned Subsidiary, the provisions of this clause (v) shall no longer be applicable to such Debt and such Debt shall be deemed to have been Incurred at the time of such transfer or other disposition;
(vi) Debt Incurred by a Person prior to the time (A) such Person became a Subsidiary of the Company, (B) such Person merged into or consolidated with a Subsidiary of the Company or (C) another Subsidiary of the Company merged into or consolidated with such Person (in a transaction in which such Person became a Subsidiary of the Company) which Debt was not Incurred in anticipation of such transaction and was outstanding prior to such transaction, provided that after giving pro forma effect to such transaction and treating any Debt as having been Incurred at the time of such transaction, the Company could Incur at least $1.00 of additional Debt pursuant to the preceding paragraph;
(vii) Development Debt Incurred by the Company or any Subsidiary of the Company; provided that the Incurrence of all such Development Debt would have been permitted under the limitations set forth in the first paragraph of this covenant on the date that the first $1.00 of such Debt was Incurred (the "Development Start Date") determined as if all such Development Debt had been incurred on the Development Start Date; provided, further that, if all such Development Debt could be Incurred by the Company or any Subsidiary of the Company on the Development Start Date in accordance with the immediately preceding proviso, then individual borrowings or draw downs in an aggregate amount of such Development Debt shall not be subject to the requirements of the first paragraph of this covenant;
(viii) Debt Incurred by the Company or any of its Subsidiaries consisting of Permitted Interest Rate, Currency or Commodity Price Agreements;
(ix) Debt which is exchanged for or the proceeds of which are used to refinance or refund, or any extension or renewal of, outstanding Debt Incurred pursuant to the preceding paragraph or clauses (iii), (iv), (vi) or (vii) of this paragraph (each of the foregoing, a "refinancing") in an aggregate principal amount not to exceed the principal amount of the Debt so refinanced plus the amount of any premium required to be paid in connection with such refinancing pursuant to the terms of the Debt so refinanced or the amount of any premium reasonably determined by the Company or the relevant Subsidiary as necessary to accomplish such refinancing by means of a tender offer or privately negotiated repurchase, plus the expenses of the Company or the Subsidiary, as the case may be, incurred in connection with such refinancing; provided, however, that (A) in the case of any refinancing of Debt which is subordinated in right of payment to the Securities, the refinancing Debt is Incurred by the Company and constitutes Subordinated Debt; (B) the refinancing Debt by its terms, or by the terms of any agreement or instrument pursuant to which such Debt is issued, (1) does not have a Weighted Average Life less than the Weighted Average Life of the Debt being refinanced and does not have a maturity earlier than the final stated maturity of the Debt being refinanced and (2) does not permit redemption or other retirement (including pursuant to an offer to purchase) of such Debt at the option of the holder thereof prior to the final stated maturity of the Debt being refinanced, other than a redemption or other retirement at the option of the holder of such Debt (including pursuant to an offer to purchase) which is conditioned upon provisions substantially similar to those described under Section 1018 and Section 1019; and (C) in the case of any refinancing of Debt Incurred by the Company, the refinancing Debt may be Incurred only by the Company, and in the case of any refinancing of Debt Incurred by a Subsidiary, the refinancing Debt may be Incurred only by such Subsidiary; provided, further, that Debt Incurred pursuant to this clause (ix) may not be Incurred more than 45 days prior to the application of the proceeds to repay the Debt to be refinanced; and
(x) Debt Incurred by the Company or any Subsidiary of the Company not otherwise permitted to be Incurred pursuant to clauses (i) no Default or Event through (ix) above, which, together with any other outstanding Debt Incurred pursuant to this clause (x), has an aggregate principal amount not in excess of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 50 million at any one time outstanding.
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist any DebtIndebtedness, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or and the other Loan Documents;
(b) Indebtedness of any Debt existing on Restricted Subsidiary owing to the Effective Date Borrower or any other Restricted Subsidiary;
(c) Indebtedness of any Restricted Subsidiary incurred to finance its working capital (or the working capital of any of its Subsidiaries that are Restricted Subsidiaries), in an aggregate principal amount not exceeding as to any Restricted Subsidiary $25,000,000 at any time outstanding;
(d) Indebtedness of the Borrower and set forth its Restricted Subsidiaries incurred to finance its acquisition of fixed or capital assets (whether pursuant to a deferred purchase arrangement with a vendor, a loan, a Financing Lease or otherwise) in Schedule 8.1 attached hereto and an aggregate principal amount not exceeding $25,000,000 at any renewals or refinancing time outstanding;
(e) Indebtedness of such Debt (a Person which becomes a Restricted Subsidiary after the date hereof; provided that (i) such Indebtedness existed at the aggregate principal amount of time such renewed or refinanced Debt shall Person became a Restricted Subsidiary and was not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments created in anticipation thereof and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) such Person becomes a Restricted Subsidiary, no Default or Event of Default shall have occurred and be continuing;
(f) Subordinated Indebtedness;
(g) Indebtedness of the Borrower and its Restricted Subsidiaries existing on the date hereof and described on Schedule 7.2(g), and any Indebtedness exchanged for, or refinancing or replacing, any such scheduled Indebtedness that (i) has economic terms, as of the date of issuance, consistent with market terms for a similarly creditworthy issuer and (ii) has other terms, as a whole, not more onerous to the aggregate amount of all such Debt at Borrower or the relevant Restricted Subsidiary than the applicable scheduled Indebtedness, provided that no Indebtedness directly or indirectly exchanged for, or refinancing or replacing, Feline Prides II Senior Notes (“FP Replacement Debt”) shall have any one time outstanding scheduled amortization prior to February 17, 2010;
(including, without limitation, any Debt h) Indebtedness of the type described in this clause (cg) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence definition of such Debt;
(d) Debt under Indebtedness incurred by the Borrower or any Hedging Transactions, provided that such transaction is entered into for risk management purposes Restricted Subsidiary in the ordinary course of business with reputable financial institutions and not for speculative purposes;
(ei) Debt arising from judgments or decrees not deemed Indebtedness in the nature of deferred compensation to be a Default or Event of Default under subsection (g) of Section 9.1employees;
(fj) Debt owing to a Person Indebtedness of any Restricted Subsidiary in an aggregate principal amount not exceeding $50,000,000 at any time outstanding; provided that is a Credit Party, but only to the extent permitted sum of all Indebtedness of all Restricted Subsidiaries under this Section 8.7 hereof7.2(j) shall not exceed $50,000,000 at any time outstanding;
(gk) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion unsecured Indebtedness of the construction projects set forth on Schedule 8.1(iBorrower owing to any Restricted Subsidiary or any Affiliate of the Borrower (excluding any Unrestricted Subsidiary);
(il) additional unsecured Debt Indebtedness of any Restricted Subsidiary or the Borrower owing to any Unrestricted Subsidiary in an aggregate amount not to exceed $5,000,000;
(m) Guarantee Obligations in respect of Indebtedness otherwise permitted under this Section 7.2; and
(n) senior unsecured notes, bonds, debentures or similar instruments of the Borrower, including Zero-Coupon Bonds and COBRAs (but, for the avoidance of doubt, excluding any Indebtedness described in clause (g) above), not at any time exceeding $750,000,000; provided that both such instruments shall not be guaranteed by any Person that is not a Loan Party. Notwithstanding the foregoing, the Borrower shall not permit any Feline Prides II Senior Notes, or any FP Replacement Debt that has any scheduled amortization prior to May 10, 2012, to be outstanding at the any time of and immediately after giving effect to the incurrence thereof November 17, 2009 unless, at such time, (i) no Default or Event the sum of Default shall have occurred all cash and be continuing or result therefrom Cash Equivalents of the Restricted Loan Parties plus all unused availability hereunder exceeds the aggregate principal amount of all such Feline Prides II Senior Notes and all such FP Replacement Debt and (ii) the aggregate amount prepayment in full of all such Feline Prides II Senior Notes and all such FR Replacement Debt shall not exceed $1,000,000 at any one time outstandingwould be permitted under Section 7.8.
Appears in 1 contract
Limitation on Debt. Create(a) The Issuer shall not, and shall not permit any Restricted Subsidiary to, create, issue, incur, assume assume, guarantee or suffer to exist in any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals manner become directly or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect indirectly liable with respect to such Debt on or otherwise become responsible for, contingently or otherwise, the Effective Datepayment of (individually and collectively, and shall otherwise be in compliance with this Agreementto “incur” or, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) as appropriate, an “incurrence”), any Debt of Borrowers or (including any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease Acquired Debt); provided that both at the time of Issuer and immediately any Guarantor shall be permitted to incur Debt (including Acquired Debt) if in each case after giving effect to the incurrence thereof of such Debt and the application of the proceeds thereof, on a pro forma basis, the Consolidated Fixed Charge Coverage Ratio for the four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Debt, taken as one period, would be greater than 2.0 to 1.0.
(b) This Section 4.06 shall not, however, prohibit the following (collectively, “Permitted Debt”):
(i) no Default the incurrence by the Issuer or Event any Restricted Subsidiary of Default shall have occurred and be continuingDebt under Credit Facilities in an aggregate principal amount, and (ii) the aggregate amount of all such together with any Permitted Refinancing Debt thereof, at any one time outstanding not to exceed an aggregate principal amount (excluding any accrued or accreted interest thereon) equal to £100 million incurred solely for working capital, capital expenditures and general corporate purposes (and excluding the acquisition of any Person);
(ii) the Notes issued on the Issue Date and the Guarantees thereof;
(iii) any Debt of the Issuer or any Restricted Subsidiary (other than Debt described in clauses (i) or (ii) of this paragraph (b)) outstanding on the date of this Indenture;
(iv) the incurrence by the Issuer or any Restricted Subsidiary of Debt representing Capitalized Lease Obligations, mortgage financings or purchase money obligations incurred for the purpose of financing all or any part of the purchase price, lease expense, rental payments or cost of design, construction, installation or improvement of property, plant or equipment or other assets (including Capital Stock) used in the business of the Issuer or any of its Restricted Subsidiaries, in an aggregate principal amount, including all Permitted Refinancing Debt incurred or issued to renew, refund, refinance, replace, defease or discharge any Debt incurred pursuant to this clause, not to exceed at any time outstanding the greater of (i) £20.0 million and (ii) 20% of Consolidated EBITDA;
(v) the incurrence by the Issuer or any Restricted Subsidiary of intercompany Debt between the Issuer and any Restricted Subsidiary or between or among Restricted Subsidiaries; provided that
(A) such debt is unsecured and the applicable creditor thereunder accedes to the Intercreditor Agreement as an Intra-group Lender;
(B) if the Issuer or a Guarantor is the obligor on any such Debt and the payee is not the Issuer or a Guarantor (except in respect of intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Issuer and its Restricted Subsidiaries and only to the extent legally permitted), (x) unless required by a Credit Facility, such Debt is unsecured and (y) it is subordinated in right of payment to the Notes, in the case of the Issuer, and the Guarantees, in the case of a Guarantor, pursuant to the Intercreditor Agreement; and
(C) (x) any disposition, pledge or transfer of any such Debt to a Person (other than a disposition, pledge or transfer to the Issuer or a Restricted Subsidiary) and (y) any transaction pursuant to which any Restricted Subsidiary that has Debt owing by the Issuer or another Restricted Subsidiary ceases to be a Restricted Subsidiary, will, in each case, be deemed to be an incurrence of such Debt not permitted by this clause (v);
(vi) the guarantee by the Issuer or any Restricted Subsidiary of Debt of the Issuer or any Restricted Subsidiary to the extent that the guaranteed Debt was permitted to be incurred by another provision of this covenant; provided that if the Debt being guaranteed is subordinated to or pari passu with the Notes or a Guarantee, then the guarantee must be subordinated or pari passu, as applicable to the same extent as the Debt guaranteed;
(vii) the incurrence by the Issuer or any Restricted Subsidiary of Debt arising from agreements providing for guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock, other than guarantees or similar credit support given by the Issuer or any Restricted Subsidiary of Debt incurred by any Person acquiring all or any portion of such assets for the type described purpose of financing such acquisition; provided that the maximum aggregate liability in respect of all such Debt permitted pursuant to this clause (c) which is set forth on Schedule 8.1 hereofvii) shall not at no time exceed $5,000,000the gross proceeds, and any renewals or refinancings including non-cash proceeds (the Fair Market Value of such Debt on terms substantially the same or better than those in effect non-cash proceeds being measured at the time of received and without giving effect to any subsequent changes in value) actually received from the original incurrence sale of such Debtassets;
(dviii) the incurrence by the Issuer or any Restricted Subsidiary of Debt under any Hedging Transactions, provided that such transaction is Obligations entered into for risk management purposes in the ordinary course of business and not for speculative purposes;
(eix) the incurrence by the Issuer or any Restricted Subsidiary of Debt in respect of workers’ compensation and claims arising under similar legislation, or pursuant to self-insurance obligations and not in connection with the borrowing of money or the obtaining of advances or credit;
(x) the incurrence by the Issuer or any Restricted Subsidiary of Debt arising from judgments (A) the honoring by a bank or decrees not deemed to be other financial institution of a Default check, draft or Event similar instrument inadvertently (except in the case of Default under subsection daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Debt is extinguished within five Business Days of incurrence, (gB) bankers’ acceptances, performance, surety, judgment, appeal or similar bonds, instruments or obligations, (C) completion guarantees provided or letters of Section 9.1credit obtained by the Issuer or any Restricted Subsidiary in the ordinary course of business, (D) the financing of insurance premiums in the ordinary course of business, and (E) any customary cash management, cash pooling or netting or setting off arrangements;
(fxi) Debt owing of any Person incurred and outstanding on the date on which such Person becomes a Restricted Subsidiary of the Issuer or another Restricted Subsidiary or is merged, consolidated, amalgamated or otherwise combined with (including pursuant to any acquisition of assets and assumption of related liabilities) the Issuer or any Restricted Subsidiary (other than (A) Debt incurred (x) to provide all or any portion of the funds utilized to consummate the transaction or series of related transactions pursuant to which such Person became a Person Restricted Subsidiary or was otherwise acquired by the Issuer or a Restricted Subsidiary or (y) otherwise in connection with or contemplation of such acquisition or (B) Debt that is a Credit Partyextinguished within three Business Days of incurrence); provided, but only however, with respect to the extent permitted under Section 8.7 hereof;
this clause (g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreementsxi), provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and such acquisition or other transaction, the Issuer could incur at least £1.00 of additional Debt pursuant to the Consolidated Fixed Charge Coverage Ratio test set forth above or such Consolidated Fixed Charge Coverage Ratio would not be less than it was immediately after prior to giving pro forma effect to such acquisition or other transaction;
(xii) the incurrence thereof by the Issuer or any Restricted Subsidiary of Permitted Refinancing Debt in exchange for or the net proceeds of which are used to refund, replace or refinance Debt incurred by it pursuant to, or described in, Section 4.06(a) and paragraphs (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and ), (ii) (iii), (iv) and (xi) of this Section 4.06(b), as the case may be;
(xiii) the incurrence of Debt of the Issuer and its Restricted Subsidiaries owed to their employees in connection with loan stock issued under employee stock purchase plans so long as the aggregate principal amount of all such Debt shall not exceed $1,000,000 at any one time outstanding.£
Appears in 1 contract
Samples: Indenture (Townfrost LTD)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto (and not otherwise permitted in this Section 8.1) and any renewals or refinancing of such Debt (Debt, provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers such Borrower or any Subsidiary of its Subsidiaries incurred for any ordinary business purpose, including Debt to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof8.1) shall not exceed $5,000,0001,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) unsecured Subordinated Debt;
(e) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(ef) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.19.1(g);
(fg) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt8.7;
(h) Guarantee Obligations of RMN related to Debt arising in an aggregate amount approximately equal to EUR 3,750,000 plus any amounts related to any post-closing adjustment for working capital owed by RetailMeNot, France, S.A.S., a company organized under the Surety Agreementslaws of France, provided that in connection with the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);2013 French Acquisition; and
(i) additional unsecured any other Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) exceed $250,000 in the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstanding.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (RetailMeNot, Inc.)
Limitation on Debt. CreateNeither the Company nor any Subsidiary will create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness Debt outstanding on the date of any Credit Party to Agent and the Lenders under this Agreement and/or (other than Debt incurred under the other Loan DocumentsSenior Credit Facilities) and identified in Schedule 6.08(a) and refinancings and replacements thereof in a principal amount not exceeding the principal amount of the Debt so refinanced or replaced on terms no less favorable to the Holders of the Notes than those in place on the date of this Agreement and with a weighted average life to maturity of not less than the then weighted average life to maturity of the Debt so refinanced or replaced;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on Company evidenced by the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such DebtNotes;
(c) any Debt incurred under the Senior Credit Facilities, not to exceed $75,000,000, and refinancings and replacements thereof (whether with the same or different lenders and agents and whether on the same or different terms or in the same or different structure) in a principal amount not exceeding the principal amount of Borrowers the Debt so refinanced or replaced;
(d) Debt owing to the Company or a Subsidiary;
(e) Debt incurred by the Company or any Subsidiary incurred of its Subsidiaries that is represented by Capital Lease Obligations, mortgage financings or purchase money obligations or otherwise to finance the acquisition of fixed or capital assets; provided, that the amount of such Debt does not exceed the -------- fair market value of the asset so financed;
(f) Debt that when issued will not result, on a pro forma basis, in an --- ----- Interest Coverage Ratio less than 2.00 to 1 for the most recent fully ended fiscal quarter of the Company preceding the date of such issuance, which pro forma compliance shall be evidenced by a certificate delivered by the --- ----- chief financial or accounting officer of the Company (or its chief executive officer if the Company does not have a chief financial or accounting officer at such time) to the Holders setting forth in reasonable detail the calculations required to establish whether pursuant the Company was in pro forma compliance with such requirement;
(g) other Debt the Net Cash Proceeds of which are applied in accordance with Section 2.06 to prepay all amounts owing under the Notes;
(h) the incurrence by the Company or any of its Subsidiaries of Hedging Obligations that are incurred for the purpose of fixing or hedging: (x) interest rate risk with respect to any floating rate Debt that is permitted by the terms of this Agreement to be outstanding; (y) exchange rate risk with respect to any agreement or Debt of such Person payable in a loan currency other than U.S. dollars; or (z) commodities risk relating to commodities agreements, entered into in the ordinary course of business, for the purchase of raw material used by the Company and its Subsidiaries;
(i) long-term Debt for borrowed money of any Subsidiary that is not a Capitalized Lease Domestic Subsidiary, together with similar such Debt listed on Schedule 6.08(i), not to exceed $3,000,000 at any one time outstanding;
(j) short-term Debt of Subsidiaries that are not Domestic Subsidiaries incurred for working capital purposes, together with similar such Debt listed on Schedule 6.08(j), not to exceed $5,000,000 at any one time outstanding;
(k) Debt of a corporation which becomes a Subsidiary after the date hereof, provided that both (i) such Debt existed at the time of such corporation -------- became a Subsidiary and was not created in anticipation thereof and (ii) immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings acquisition of such Debt on terms substantially corporation by the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) Company no Default or Event of Default shall have occurred and be continuing (including pursuant to clause (f) of this Section);
(l) other unsecured Debt of the Company and it Subsidiaries that (i) has terms and provisions (including as to subordination, pricing, covenants, defaults, average life to maturity, etc.) which are no more favorable or result therefrom advantageous to the holders thereof than the comparable terms and provisions of this Agreement and the Notes, (ii) is in an aggregate principal amount at any time outstanding not to exceed $5,000,000 and (iii) is incurred within 90 days of the Issuance Date; and
(m) other unsecured Debt of the Company and it Subsidiaries in an aggregate amount of all such Debt shall at any time outstanding not to exceed $1,000,000 at any one time outstanding5,000,000.
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to the Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 to the Disclosure Letter attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less plus any principal payments and the amount of reasonable premium paid in connection with any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt);
(c) any Debt of Borrowers the Borrower or any Subsidiary of its Subsidiaries incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,00012,500,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Subordinated Debt;
(e) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(ef) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(fg) Debt with respect to the Borrower’s corporate credit cards in an amount not to exceed $3,000,000 in the aggregate at any one time outstanding;
(h) Debt to trade creditors incurred in the ordinary course of business;
(i) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 8.6 hereof; and
(j) Debt consisting of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(gk) Debt secured by Permitted Liens described in clauses (b) and (c) of the Comerica Debt and the Subordinated Debtdefinition of Permitted Liens;
(hl) Debt arising under of any Person that becomes a Subsidiary of the Surety AgreementsBorrower (or of any Person not previously a Subsidiary that is merged, amalgamated or consolidated with or into the Borrower or one of its Subsidiaries) after the Effective Date as a result of a Permitted Acquisition, or Debt of any Person that is assumed by the Borrower or any of its Subsidiaries in connection with a Permitted Acquisition, and any refinancings thereof; provided that (i) such Debt is not incurred in contemplation of such Permitted Acquisition and (ii) the Borrowers aggregate principal amount of Indebtedness that is outstanding in reliance on this Section 8.1(l) shall promptly terminate the Liberty Mutual Indemnity Agreement and not, at any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i)time outstanding, exceed $500,000 in principal amount;
(im) Debt consisting of insurance premium financing;
(n) Debt consisting of obligations under deferred consideration (earn-outs, milestone payments and other contingent obligations that constitute Debt) or other similar arrangements incurred in connection with any Permitted Acquisition or other Investment permitted hereunder; and
(o) Guarantee Obligations with respect to any Debt otherwise permitted by this Section 8.1.
(p) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 250,000 at any one time outstanding.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Rocket Fuel Inc.)
Limitation on Debt. Create, incur, assume Escrow Corp. shall not Issue any Debt other than the Initial Securities or suffer any Escrow Debt. Holdings will not Issue any Debt and Holdings will not permit any Subsidiary to exist Issue any Debt; provided, excepthowever, that the foregoing shall not prohibit the Issuance of the following Debt:
(a) Indebtedness of any Credit Party to Agent the Initial Securities and the Lenders under this Agreement and/or the other Loan DocumentsExchange Securities;
(b) Debt of Holdings if, immediately after giving effect to any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) Issuance, the aggregate principal amount of Debt (including the aggregate accreted value as of such renewed or refinanced date of any Debt shall Issued at a discount) of Holdings outstanding would not exceed an amount equal to the aggregate principal amount Adjusted Consolidated Net Worth of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such DebtHoldings;
(c) Subordinated Obligations of Holdings if, immediately after giving effect to any such Issuance, the Fixed Charge Coverage Ratio would be greater than 3.00 to 1.00; provided, however, that the Subordinated Obligations so Issued (A) shall not mature prior to the Stated Maturity of all the Securities outstanding on the date of such Issuance and (B) shall have an Average Life to their Stated Maturity equal to or greater than the remaining Average Life to the Stated Maturity of such Securities;
(d) Permitted Refinancing Debt Issued by Holdings to Refinance Debt Issued pursuant to the foregoing clauses (a), (b) and (c) and clause (i) below;
(e) any Debt of Borrowers or any Subsidiary incurred to finance of Holdings that is a Depository Institution or a Subsidiary of such Depository Institution;
(f) in the acquisition case of fixed any Financial Services Subsidiary which is not a Depository Institution or capital a Subsidiary of a Depository Institution, (x) any Debt Issued by such Financial Services Subsidiary in the ordinary course of funding its assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time (y) any additional Debt of and such Financial Services Subsidiary if, immediately after giving effect to the incurrence thereof Issuance of such additional Debt, the aggregate principal amount of Debt (iincluding the aggregate accreted value as of such date of any Debt Issued at a discount) no Default or Event of Default shall have occurred such Financial Services Subsidiary outstanding (other than any Debt described in clause (x) above) would not exceed an amount equal to the product of 2.0 and be continuingthe Adjusted Consolidated Net Worth of such Financial Services Subsidiary, and (iiz) the aggregate amount of all any Permitted Refinancing Debt Issued by Holdings, such Debt at any one time outstanding (including, without limitation, Subsidiary or a Subsidiary thereof to Refinance any Debt of the type described in this Issued pursuant to clause (cy) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereofabove;
(g) Debt of Holdings in an aggregate principal amount not to exceed $200 million incurred in connection with the Comerica Refinancing Transactions provided that such Debt and the Subordinated Debtshall not mature after December 31, 1999;
(h) Debt arising under of a Subsidiary of Holdings Issued and outstanding on or prior to the Surety Agreementsdate on which such Subsidiary was acquired by Holdings (other than Debt Issued as consideration in, provided that or to provide all or any portion of the Borrowers shall promptly terminate funds or credit support utilized to consummate, the Liberty Mutual Indemnity Agreement transaction or series of related transactions pursuant to which such Subsidiary became a Subsidiary of Holdings or was acquired by Holdings) and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i)Permitted Refinancing Debt Issued by Holdings, such Subsidiary or a Subsidiary thereof to Refinance such Debt;
(i) additional unsecured FNH Notes assumed by Holdings in connection with the Transactions; or
(j) Permitted Acquisition Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the Holdings in an aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstandingoutstanding not in excess of $300 million.
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of The Issuer shall not, and shall not permit any Credit Party Restricted Subsidiary to, incur or be liable with respect to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(bi) any Debt existing on the Effective Date and set forth of a type described in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that clause (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) or (iv) of the renewal definition of "Debt" in Section 1.01 or refinancing (ii) any Guarantee of any such Debt shall be on substantially described in clause (i) above; provided that the same or better terms as in effect with respect to Issuer and its Restricted Subsidiaries may incur such Debt if, on the Effective Datedate of the incurrence, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof and the receipt and application of the proceeds thereof, the Fixed Charge Coverage Ratio (EBITDA) is not less than 3.5:1.
(b) Notwithstanding the foregoing, the Issuer and its Restricted Subsidiaries may incur and be liable for each and all of the following:
(i) no Default or Event of Default shall have occurred and be continuing, and Debt outstanding under the Financing Documents;
(ii) Debt under or in respect of the Exit Facility in an aggregate principal amount not to exceed $120,000,000 less any amounts up to an aggregate not to exceed $45,000,000 by which the commitments under the Exit Facility have been permanently reduced;
(iii) Debt outstanding on the Closing Date, including the Government Settlement and any other obligations arising under the Plan of Reorganization;
(iv) Capital Lease Obligations; provided that the aggregate outstanding principal amount of Debt permitted by this clause (iv) and by clause (v) shall not at any time exceed $25,000,000;
(v) Debt incurred or assumed after the Closing Date for the purpose of financing all or any part of the cost of acquiring or constructing an asset of the Issuer or a Restricted Subsidiary; provided that (A) such Debt is secured by a Lien on such asset that is permitted by Section 7.02(g) and (B) the aggregate outstanding principal amount of all Debt permitted by clause (iv) and this clause (v) shall not at any time exceed $25,000,000;
(vi) Debt of any Person that becomes a Restricted Subsidiary after the Closing Date in connection with an Acquisition; provided that such Debt was outstanding before such Person became a Restricted Subsidiary and was not incurred in contemplation thereof;
(vii) Debt incurred after the Closing Date and Guarantees of Debt entered into after the Closing Date; provided that (A) the Debt so incurred or Guaranteed is incurred in exchange for or to repay, prepay, repurchase, redeem, defease, retire or refinance ("refinance") any outstanding Debt of the Issuer or any Restricted Subsidiary otherwise permitted by this Section and (B) the principal amount of the Debt so incurred or Guaranteed shall not exceed the unpaid principal amount of the Debt so exchanged or refinanced; provided that in connection with any refinancing of the Exit Facility, the principal amount of the Debt incurred or to be incurred pursuant to such refinancing may be in an amount equal to the aggregate amount of all the commitments under the Exit Facility immediately prior to such Debt at any one time outstanding refinancing;
(including, without limitation, any Debt of the type described in this clause (cviii) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Permitted Intercompany Debt;
(dix) Debt consisting of trade obligations arising in the ordinary course of business after the Closing Date;
(x) Debt under Interest Rate Agreements of the Issuer or any Hedging Transactions, provided that such transaction is Restricted Subsidiary relating to Debt permitted to be incurred and outstanding under this Section and entered into in the ordinary course of business for risk management purposes the purpose of limiting interest rate risks and not for speculative purposes;speculation; and
(exi) Debt owed in respect of any overdrafts and related liabilities arising from judgments treasury, depository and cash management services or decrees not deemed to be a Default or Event in connection with any automated clearing house transfers of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstandingfunds.
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist any DebtDebt ------------------ or Guarantee Obligation, except:
(a) Indebtedness in respect of the Notes, the Letters of Credit and other obligations of the Company or any Credit Party to Agent and the Lenders Subsidiary under this Agreement and/or and the other Loan DocumentsDocuments to which it is a party;
(b) any Debt existing on the Effective Date and or Guarantee Obligation set forth in Schedule 8.1 9.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) in amounts not exceeding the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date scheduled amounts (less any principal payments and required amortization according to the amount of any commitment reductions made thereon on or prior to such renewal or refinancingterms thereof), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers the Company or any a Subsidiary other than pursuant to this Agreement and other than Debt set forth in Schedule 9.1 attached hereto incurred to finance the acquisition of fixed or capital assets, assets (whether pursuant to a loan or a Capitalized Lease provided that both at the time Lease) or assumed in any Permitted Acquisition (and not created in contemplation of and immediately after giving effect to the incurrence thereof (isuch Permitted Acquisition) no Default or Event of Default shall have occurred and be continuing, and (ii) the in an aggregate amount of all such Debt not exceeding $10,000,000 at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000outstanding, and any renewals or refinancings refinancing of such Debt in amounts not exceeding the scheduled amounts (less any required amortization according to the terms thereof), on terms substantially the same or better than those terms and otherwise in effect at the time of the original incurrence of such Debtcompliance with this Agreement;
(d) Debt under any Hedging Transactionsin respect of taxes, provided assessments or governmental charges to the extent that such transaction is entered into for risk management purposes and payment thereof shall not for speculative purposesat the time be required to be made in accordance with Section 8.13;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1Subordinated Debt;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted Indebtedness under Section 8.7 hereofany Interest Rate Protection Agreements;
(g) Unsecured, subordinated Debt to former employees, officers or directors of the Comerica Debt and Company in connection with redemptions or repurchases of Capital Stock of the Subordinated DebtCompany from such employee, officer or director upon termination of employment or their death or disability;
(h) Debt arising under the Surety Agreementsdescribed in and permitted by Sections 9.8(e), provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i(f) or (g);
(i) Guarantees by the Company of an obligation of a Subsidiary if such underlying obligation of such Subsidiary would not be classified as Debt; and
(j) additional unsecured Debt and Guarantee Obligations not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the exceeding $500,000 in aggregate principal amount of all such Debt shall not exceed $1,000,000 at any one time outstanding.
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 9.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at incurred during any one time outstanding Fiscal Year (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 9.1 hereof) shall not exceed $5,000,0002,000,000, and any renewals or refinancings of such Debt on terms substantially (it being understood that Indebtedness under the same or better than those in effect at the time of the original incurrence of such Acquisition Credit is not intended to be restricted by this covenant);
(d) Subordinated Debt;
(de) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(ef) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.110.1;
(fg) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 9.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;; and
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 2,000,000 at any one time outstanding.
Appears in 1 contract
Samples: Credit Agreement (National Technical Systems Inc /Ca/)
Limitation on Debt. CreateThe Company may not, incurand may not permit any Restricted Subsidiary to, assume or suffer Incur any Debt except that the Company and any Restricted Subsidiary (but not any Restricted Subsidiary that is not a Subsidiary Guarantor) may Incur Debt if after giving pro forma effect to exist any Debtthe Incurrence of such Debt and the receipt and application of the proceeds thereof the Consolidated Cash Flow Coverage Ratio of the Company would be greater than 2.0 to 1. Notwithstanding the foregoing limitation, except:the following Debt may be Incurred.
(a) Indebtedness Debt of the Company or any Subsidiary Guarantor, other than Floor Plan Debt, under the Senior Credit Party Facility in an aggregate principal amount at any one time not to Agent and exceed the Lenders under this Agreement and/or greater of $200 million or 25% of the other Loan DocumentsCompany's Consolidated Net Tangible Assets at the time of such Incurrence;
(b) Debt of the Company or any Restricted Subsidiary consisting of Floor Plan Debt existing on or Guarantees of Floor Plan Debt of the Effective Date and set forth in Schedule 8.1 attached hereto and Company;
(c) Debt owed by the Company to any renewals Restricted Subsidiary for which fair value has been received or refinancing of such Debt (provided that owed by a Restricted Subsidiary to the Company or a Restricted Subsidiary; provided, however, that:
(i) any such Debt owing by the aggregate principal amount of such renewed or refinanced Company to a Restricted Subsidiary shall be Subordinated Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), evidenced by an intercompany promissory note and
(ii) upon either the renewal transfer or refinancing other disposition by such Restricted Subsidiary or the Company of any Debt so permitted to a Person other than the Company or another Restricted Subsidiary or the issuance (other than directors' qualifying shares), sale, transfer or other disposition of shares of Capital Stock (including by consolidation or merger) of such Restricted Subsidiary to a Person other than the Company or another such Restricted Subsidiary, the provisions of this clause (c) shall no longer be applicable to such Debt and such Debt shall be on substantially the same or better terms as in effect with respect deemed to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) have been Incurred at the time of such renewal transfer or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debtother disposition;
(d) Debt under consisting of the Notes (other than the Additional Notes), the Subsidiary Guarantees and Guarantees by Restricted Subsidiaries of any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposesDebt Incurred to refinance or refund the Notes;
(e) Debt arising from judgments of the Company or decrees any of its Restricted Subsidiaries represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, Incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount, including all Debt Incurred to refund or refinance any Debt Incurred pursuant to this clause (e), not deemed to be a Default or Event of Default under subsection (g) of Section 9.1exceed, at any time outstanding, $20 million;
(f) Debt owing to a Person that is a Credit Partyof the Company or any Restricted Subsidiary consisting of Permitted Interest Rate, but only to the extent permitted under Section 8.7 hereofCurrency or Commodity Price Agreements;
(g) Debt which is exchanged for or the Comerica proceeds of which are used to refinance or refund, or any extension or renewal of (each of the foregoing, a "refinancing"),
(i) the Notes,
(ii) outstanding Debt that is not described in any other clause hereof that was outstanding as of the Closing Date (other than the 2009 Notes),
(iii) outstanding Debt Incurred pursuant to the first paragraph of this Section 3.01, and
(iv) Debt previously Incurred pursuant to this clause (g), in each case in an aggregate principal amount not to exceed the principal amount of the Debt so refinanced plus the amount of any premium required to be paid in connection with such refinancing pursuant to the terms of the Debt so refinanced or the amount of any premium reasonably determined by the Company as necessary to accomplish such refinancing by means of a tender offer or privately negotiated repurchase, plus the expenses of the Company or the Restricted Subsidiary, as the case may be, incurred in connection with such refinancing; provided, however, that:
(1) Debt the proceeds of which are used to refinance the Notes or Debt which is pari passu with or subordinate in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, shall only be permitted if (A) in the case of any refinancing of the Notes or Debt which is pari passu to the Notes or the Subsidiary Guarantees, as the case may be, the refinancing Debt is made pari passu to the Notes or the Subsidiary Guarantees, as the case may be, or subordinated to the Notes or the Subsidiary Guarantees, as the case may be, and (B) in the Subordinated Debtcase of any refinancing of Debt which is subordinated to the Notes or the Subsidiary Guarantees, as the case may be, the refinancing Debt constitutes Debt that is subordinated to the Notes or the Subsidiary Guarantees, as the case may be, at least to the same extent as the Debt being refinanced;
(2) the refinancing Debt by its terms, or by the terms of any agreement or instrument pursuant to which such Debt is issued, (A) does not have an Average Life that is less than the remaining Average Life of the Debt being refinanced and (B) does not permit redemption or other retirement (including pursuant to an offer to purchase) of such Debt at the option of the holder thereof prior to the final stated maturity of the Debt being refinanced, other than a redemption or other retirement at the option of the holder of such Debt (including pursuant to an offer to purchase) which is conditioned upon provisions substantially similar to those contained in Section 3.06 or Section 3.09 hereof;
(3) in the case of any refinancing of Debt of the Company, the refinancing Debt may be Incurred only by the Company, and in the case of any refinancing of Debt of a Restricted Subsidiary, the refinancing Debt may be Incurred only by such Restricted Subsidiary or the Company; and
(4) in the case of any refinancing of Preferred Stock of a Restricted Subsidiary, such Preferred Stock may be refinanced only with Preferred Stock of such Restricted Subsidiary; and
(h) Debt arising under of the Surety AgreementsCompany or any Subsidiary Guarantor not otherwise permitted to be Incurred pursuant to clauses (a) through (g) above, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and which, together with any other Bond Documents related thereto following outstanding Debt Incurred pursuant to this clause (h), and in both such cases including any renewals, extensions, substitutions, refinancings or replacements of such Debt has an aggregate principal amount not in excess of $30 million at any time outstanding. For purposes of determining compliance with, and the completion outstanding principal amount of any particular Debt incurred pursuant to and in compliance with, this Section 3.01:
(1) in the event that Debt meets the criteria of more than one of the construction projects set forth types of Debt described in the first and second paragraphs of this Section 3.01, the Company, in its sole discretion, will classify such item of Debt on Schedule 8.1(i)the date of incurrence (or later classify or reclassify such Debt, in its sole discretion) and only be required to include the amount and type of such Debt in one of such clauses;
(i2) additional unsecured Guarantees of, or obligations in respect of letters of credit relating to, Debt not which is otherwise described above, provided that both at included in the time determination of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate a particular amount of all such Debt shall not be included;
(3) the principal amount of any Redeemable Stock or Preferred Stock of the Company or a Restricted Subsidiary will be equal to the greater of the maximum redemption or repurchase price (not including, in either case, any redemption or repurchase premium) or the liquidation preference thereof;
(4) Debt permitted by this covenant need not be permitted solely by reference to one provision permitting such Debt but may be permitted in part by one such provision and in part by one or more other provisions of this covenant permitting such Debt;
(5) any Receivables Sale shall be the amount for which there is recourse to the seller; and
(6) the amount of Debt issued at a price that is less than the principal amount thereof will be equal to the amount of the liability in respect thereof determined in accordance with generally accepted accounting principles. Accrual of interest, accrual of dividends, the accretion of accreted value, the payment of interest in the form of additional Debt and the payment of dividends in the form of additional shares of Preferred Stock or Redeemable Stock will not be deemed to be an incurrence of Debt for purposes of this Section 3.01. For purposes of determining compliance with any U.S. dollar-denominated restriction on the Incurrence of Debt, the U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred, in the case of term Debt, or first committed, in the case of revolving credit Debt; provided that if such Debt is Incurred to refinance other Debt denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-dominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-dominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Debt does not exceed $1,000,000 at the principal amount of such Debt being refinanced. Notwithstanding any one time outstandingother provision of this Section 3.01, the maximum amount of Debt that the Company may Incur pursuant to this Section 3.01 shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies.
Appears in 1 contract
Samples: First Supplemental Indenture (Group 1 Automotive Inc)
Limitation on Debt. Create, incur, assume or suffer The Company will not Incur and will not permit any Subsidiary of the Company to exist any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) Incur any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing)unless, (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence Incurrence of such Debt and the receipt and application of the proceeds thereof, the Consolidated Cash Flow Ratio for the four full fiscal quarters for which quarterly or annual financial statements are available immediately preceding the Incurrence of such Debt, calculated on a pro forma basis as if such Debt had been Incurred, and proceeds thereof had been applied, at the beginning of such four full fiscal quarters, would be greater than 2.0 to 1 (the "Debt Incurrence Provision"). Notwithstanding the foregoing, the Company and its Subsidiaries will be permitted to incur the following Debt:
(i) no Default or Event of Default shall have occurred and be continuing, and Debt under the Notes (excluding Additional Notes);
(ii) Debt not covered by any other Clause of this covenant outstanding on the aggregate amount date of all this Indenture;
(iii) Debt owed by the Company to any Wholly-Owned Subsidiary of the Company (provided that such Debt is at all times held by a Person which is a Wholly-Owned Subsidiary of the Company); provided, however, that, for purposes of this Section 1011, upon either (x) the transfer or other disposition by a Wholly-Owned Subsidiary of the Company of any Debt so permitted to a Person other than the Company or another Wholly-Owned Subsidiary of the Company or (y) the issuance (other than Qualified Capital Stock), sale, lease, transfer or other disposition of shares of Capital Stock (including by amalgamation, consolidation or merger) of such Wholly-Owned Subsidiary to a Person other than the Company or another Wholly-Owned. Subsidiary of the Company, the provisions of this Clause (iii) shall no longer be applicable to such Debt and such Debt shall be deemed to have been Incurred at the time of such transfer or other disposition;
(iv) Debt under one or more Working Capital Facilities or similar arrangements in an aggregate principal amount at any one time outstanding not to exceed the Borrowing Base of the Company and its Subsidiaries plus U.S.$100 million or its equivalent in Canadian dollars; provided, however, that such U.S.$100 million shall not be secured by a Lien on any asset of the Company or its subsidiaries other than Inventory or Receivables of the Company and its Subsidiaries;
(includingv) Debt Incurred to renew, extend, refinance or refund any Debt permitted to be incurred pursuant to the Debt Incurrence Provision and in Clause (i), (ii) or (iii) above or (ix) below; provided, however, that the principal amount of such Debt does not exceed the principal amount (or accreted value in the case of Debt issued at an original issue discount) of Debt so renewed, extended, refinanced or refunded plus the amount of any premium required to be paid in connection with such refinancing pursuant to the terms of the Debt refinanced or the amount of any premium reasonably determined by the Company as necessary to accomplish such refinancing by means of a tender offer or privately negotiated repurchase, plus the expenses of the Company in connection with such refinancing; and provided, further, that (A) in the case of any refinancing or refunding of Debt which is pari passu with the Notes or the Guarantee, as the case may be, the refinancing or refunding Debt is made pari passu with the Notes or the Guarantee, as the case may be, and, in the case of any refinancing or refunding Debt which is subordinated in right of payment to the Notes, the refinancing or refunding Debt is made subordinated to the Notes, at least to the same extent as the Debt being refinanced or refunded and (B) in any case, the refinancing or refunding Debt by its terms, or by the terms of any agreement or instrument pursuant to which such Debt is issued, (x) does not provide for payments of principal of such Debt at the stated maturity thereof or by way of a sinking fund applicable thereto or by way of any mandatory redemption, defeasance, retirement or repurchase thereof by the Company (including any redemption, retirement or repurchase which is contingent upon events or circumstances, but excluding any retirement required by virtue of acceleration of such Debt upon an event of default thereunder), in each case prior to the earlier of the final stated maturity of the Debt being refinanced or refunded and the final stated maturity of the Notes and (y) does not permit redemption or other retirement (including pursuant to an Offer to Purchase made by the Company) of such Debt at the option of the holder thereof prior to the earlier of the final stated maturity of the Debt being refinanced or refunded and the final stated maturity of the Notes, other than a redemption or other retirement at the option of the holder of such Debt (including pursuant to an offer to purchase made by the Company) which is conditioned upon the change of control of the Company pursuant to provisions substantially similar to those described in Section 1010; and provided further that any Debt Incurred to renew, extend, refinance or refund any Debt incurred by Spruce Falls Inc. (other than Debt under Working Capital Facilities) shall be Incurred by the Company;
(vi) Excluded Debt of any Excluded Subsidiary;
(vii) Debt of the Company under the Tembec/Mxxxxxx Québec Guarantee or Debt of the Company under the Mxxxxxx Québec Shareholders' Support Agreement, including in both cases, without limitation, any Debt which may be Incurred by the Company to finance the purchase of Mxxxxxx Québec's OSB Mill if required pursuant to the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such DebtMxxxxxx Québec Shareholders' Support Agreement;
(dviii) Debt under any Hedging Transactions, of a Wholly-Owned Subsidiary issued to and held by the Company or a Wholly-Owned Subsidiary of the Company (provided that such transaction Debt is entered into for risk management purposes and not for speculative purposes;at all times held by the Company or a Wholly-Owned Subsidiary of the Company); and
(eix) Debt arising from judgments or decrees not deemed otherwise permitted to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing Incurred pursuant to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
Clauses (i) additional unsecured Debt not otherwise described through (viii) above, provided that both at the time which, together with any other outstanding Debt Incurred pursuant to this Clause (ix) has an aggregate principal amount not in excess of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 U.S.$100,000,000 at any one time outstanding.
Appears in 1 contract
Samples: Indenture (Tembec Industries Inc)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto to the Disclosure Letter and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers Borrower or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereofto the Disclosure Letter) shall not exceed $5,000,00010,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstanding.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Quinstreet, Inc)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to the Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto to the Disclosure Letter and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt of the Commitment outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing)Date, (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers the Borrower or any Subsidiary of its Subsidiaries incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereofto the Disclosure Letter) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstanding.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Neophotonics Corp)
Limitation on Debt. Create(a) The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, create, issue, incur, assume assume, guarantee or suffer in any manner become directly or indirectly liable with respect to exist any Debtor otherwise become responsible for, except:
contingently or otherwise, the payment of (a) Indebtedness of any Credit Party individually and collectively, to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) “Incur” or, as appropriate, an “Incurrence”), any Debt existing on (including any Acquired Debt); provided that any Permitted Subsidiary shall be permitted to Incur Debt (including Acquired Debt) if (i) after giving effect to the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing Incurrence of such Debt (provided that (i) and the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount application of the original Debt outstanding proceeds thereof, on the Effective Date (less any principal payments a pro forma basis, no Default or Event of Default would occur or be continuing and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred Incurrence and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof Incurrence of such Debt and the application of the proceeds thereof, on a pro forma basis, the Consolidated Fixed Charge Coverage Ratio for APHL for the four full fiscal quarters for which financial statements are available immediately preceding the Incurrence of such Debt, taken as one period, would be greater than 2.0 to 1.0.
(b) Section 4.06(a) shall not, however, prohibit the following (collectively, “Permitted Debt”):
(i) no Default or Event the Incurrence by Permitted Subsidiaries of Default shall have occurred and be continuing, Debt under Credit Facilities in an aggregate principal amount not to exceed the greater of (i) €350,000,000 and (ii) an amount equal to (I) 85% of Total Receivables plus 60% of Total Inventories less (II) €250,000,000;
(ii) the Incurrence by the Issuer of Debt represented by (i) the original Notes issued on the Issue Date and (ii) Additional Notes issued from time to time in payment of interest or Additional Amounts on (x) such Notes or (y) such Additional Notes so issued from time to time;
(iii) any Debt of the Issuer or any of its Restricted Subsidiaries (other than Debt described in clauses (i) and (ii) of this paragraph (b)) outstanding on the Issue Date;
(iv) the Incurrence by the Issuer or any of its Restricted Subsidiaries of intercompany Debt between the Issuer and any of its Restricted Subsidiaries or between or among Restricted Subsidiaries; provided that:
(A) if the Issuer is the obligor on any such Debt, such Debt must be unsecured (except in respect of the intercompany current liabilities Incurred in the ordinary course of business in connection with cash management, cash pooling, tax and accounting operations of the Issuer and its Restricted Subsidiaries); and
(B) (x) any disposition, pledge or transfer of any such Debt to a Person (other than a disposition, pledge or transfer to the Issuer or a Restricted Subsidiary of the Issuer) and (y) any transaction pursuant to which any Restricted Subsidiary that has Debt owing by the Issuer or another Restricted Subsidiary of the Issuer ceases to be a Restricted Subsidiary of the Issuer, will, in each case, be deemed to be an Incurrence of such Debt not permitted by this clause (iv);
(v) guarantees of (i) the Issuer’s Debt by Restricted Subsidiaries that are not Permitted Subsidiaries; (ii) Debt of any of its Restricted Subsidiaries that are not Permitted Subsidiaries by any Restricted Subsidiary that is not a Permitted Subsidiary; (iii) Debt of any Permitted Subsidiary by any Permitted Subsidiary to the extent that the guaranteed Debt was permitted to be incurred by another provision of this Section 4.06;
(vi) the Incurrence by any Permitted Subsidiaries of Debt represented by Capitalized Lease Obligations, mortgage financings, purchase money obligations or other Debt Incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property or assets, in each case, Incurred for the purpose of financing or refinancing all or any part of the purchase price, lease expense or cost of construction or improvement of property, plant, equipment or other assets used in any Permitted Subsidiary’s business (including any reasonable related fees or expenses Incurred in connection with such acquisition or development); provided that the principal amount of such Debt so Incurred when aggregated with other Debt previously Incurred in reliance on this clause (vi) and still outstanding shall not in the aggregate exceed the greater of €150,000,000 and 2.0% of Total Assets; and provided, further, that the total principal amount of all any Debt Incurred in connection with an acquisition or development permitted under this clause (vi) did not in each case at the time of Incurrence exceed (A) the Fair Market Value of the acquired or constructed asset or improvement so financed or (B) in the case of an uncompleted constructed asset, the amount of the asset to be constructed, as determined on the date the contract for construction of such asset was entered into by APHL or the relevant Permitted Subsidiary (including, in each case, any reasonable related fees and expenses Incurred in connection with such acquisition, construction or development);
(vii) the Incurrence by the Issuer or any of its Restricted Subsidiaries of Debt at any one time outstanding (arising from agreements providing for guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock (other than guarantees or similar credit support given by the Issuer or any of its Restricted Subsidiaries of Debt Incurred by any Person acquiring all or any portion of such assets for the type described purpose of financing such acquisition); provided that the maximum aggregate liability in respect of all such Debt permitted pursuant to this clause (c) which is set forth on Schedule 8.1 hereofvii) shall not at no time exceed $5,000,000the net proceeds, and any renewals or refinancings including non-cash proceeds (the Fair Market Value of such Debt on terms substantially the same or better than those in effect non-cash proceeds being measured at the time of received and without giving effect to any subsequent changes in value) actually received from the original incurrence sale of such Debtassets;
(dviii) the Incurrence by any Permitted Subsidiary of Debt under any Commodity Hedging Transactions, provided that such transaction is Agreements entered into for risk management purposes in the ordinary course of business and not for speculative purposes;
(eix) the Incurrence by the Issuer or any of its Restricted Subsidiaries of Debt arising from judgments or decrees under Currency Agreements entered into in the ordinary course of business and not deemed to be a Default or Event of Default under subsection (g) of Section 9.1for speculative purposes;
(fx) the Incurrence by the Issuer or any of its Restricted Subsidiaries of Debt owing to a Person that is a Credit Party, but only to under Interest Rate Agreements entered into in the extent permitted under Section 8.7 hereofordinary course of business and not for speculative purposes;
(gxi) the Comerica Incurrence of Debt by the Issuer or any of its Restricted Subsidiaries of Debt in respect of workers’ compensation and claims arising under similar legislation, or pursuant to self-insurance obligations and not in connection with the Subordinated Debtborrowing of money or the obtaining of advances or credit;
(hxii) the Incurrence of Debt by the Issuer or any of its Restricted Subsidiaries arising under from (A) the Surety Agreementshonoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Debt is extinguished within five Business Days of Incurrence, (B) bankers’ acceptances, performance, surety, judgment, completion, payment, appeal or similar bonds, instruments or obligations, (C) completion guarantees, advance payment, customs, VAT or other tax guarantees or similar instruments provided or letters of credit obtained by any Permitted Subsidiary in the Borrowers shall promptly terminate ordinary course of business, and (D) the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following financing of insurance premiums in the completion ordinary course of the construction projects set forth on Schedule 8.1(i)business;
(xiii) any Debt of Permitted Subsidiaries Incurred pursuant to any Permitted Receivables Financing;
(xiv) the Incurrence by a Person of Permitted Refinancing Debt in exchange for or the net proceeds of which are used to refund, replace or refinance Debt Incurred by it pursuant to, or described in, paragraphs (a), (b)(ii) and (b)(iii), this paragraph (b)(xiv) and paragraphs (b)(xviii), (b)(xix) and (b)(xx) of this Section 4.06, as the case may be;
(xv) guarantees by Permitted Subsidiaries of Debt Incurred by Permitted Joint Ventures in an aggregate principal amount at any one time outstanding not to exceed an amount equal to €75,000,000;
(xvi) cash management obligations and Debt in respect of netting services, pooling arrangements or similar arrangements in connection with cash management in the ordinary course of business consistent with past practice;
(xvii) (i) additional unsecured take-or-pay obligations in the ordinary course of business, (ii) customer deposits and advance payments in the ordinary course of business received from customers for goods or services purchased in the ordinary course of business and (iii) manufacturer, vendor financing, customer and supply arrangements in the ordinary course of business;
(xviii) the Incurrence of Debt by Permitted Subsidiaries (other than and in addition to Debt permitted under clauses (i) through (xvii) above and clauses (xix) and (xx) below) in an aggregate principal amount at any one time outstanding not to exceed, together with any Permitted Refinancing Debt in respect thereof, the greater of €265,000,000 and 3.5% of Total Assets;
(xix) Debt of any Permitted Subsidiary (x) Incurred and outstanding on the date on which such Person becomes a Permitted Subsidiary or is merged, consolidated, amalgamated or otherwise described abovecombined with (including pursuant to any acquisition of assets and assumption of related liabilities) the Permitted Subsidiary or (y) Incurred to provide all or any portion of the funds utilized to consummate the transaction or series of related transactions pursuant to which such Person became a Permitted Subsidiary or was otherwise acquired by a Permitted Subsidiary; provided, provided however, with respect to each of clause (xix)(x) and (xix)(y), that both at the time of and immediately such acquisition or other transaction (1) APHL would have been able to Incur €1.00 of additional Indebtedness pursuant to Section 4.06(a) after giving effect to the incurrence thereof Incurrence of such Indebtedness pursuant to this clause (ixix) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii2) the aggregate amount Fixed Charge Coverage Ratio of all APHL and its Restricted Subsidiaries would not be less than it was immediately prior to giving pro forma effect to such Debt shall not exceed $1,000,000 at any one time outstanding.acquisition or other transaction; and
Appears in 1 contract
Limitation on Debt. Create1.1 The Company shall not, and shall not permit any Restricted Subsidiary to, create, issue, incur, assume assume, guarantee or suffer in any manner become directly or indirectly liable with respect to exist or otherwise become responsible for, contingently or otherwise, the payment of (individually and collectively, to “Incur” or, as appropriate, an “Incurrence”), any Debt (including any Acquired Debt, except); provided that the Company and any Guarantor shall be permitted to Incur Debt (including Acquired Debt) if:
(a) Indebtedness after giving effect to the Incurrence of any Credit Party to Agent such Debt and the Lenders under this Agreement and/or application of the other Loan Documentsproceeds thereof, on a pro forma basis, no Default or Event of Default would occur or be continuing;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event Incurrence and after giving effect to the Incurrence of Default has occurred such Debt and is continuing or would result from the renewal or refinancing application of the proceeds thereof, on a pro forma basis, the Consolidated Fixed Charge Coverage Ratio for the four full fiscal quarters for which financial statements are available immediately preceding the Incurrence of such Debt, taken as one period, would be greater than 2.00 to 1.00; and
(c) if such Debt is Senior Debt, at the time of such Incurrence and after giving effect to the Incurrence of such Senior Debt and the application of the proceeds thereof, on a pro forma basis, the Consolidated Senior Leverage Ratio for the four full fiscal quarters for which financial statements are available immediately preceding the Incurrence of such Senior Debt, taken as one period, would be less than 4.00 to 1.00.
1.2 This Section 1 (Limitation on Debt) shall not, however, prohibit the following (collectively, “Permitted Debt”):
(a) the Incurrence by the Company or any Restricted Subsidiary of Debt under Credit Facilities in an aggregate principal amount at any one time outstanding not to exceed an amount equal to (i) the Total Commitments, plus (ii) in the case of any refinancing of any Debt permitted under this paragraph (a), the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing;
(b) the Incurrence by the Company of Debt pursuant to the Notes (other than Additional Notes) and the Incurrence of Debt by the Guarantors pursuant to the Note Guarantees (other than guarantees of Additional Notes);
(c) any Debt of Borrowers the Company or any Restricted Subsidiary incurred outstanding on the Issue Date (other than: (i) Debt described in paragraphs (a) or (b) of this Section 1.2 or (ii) Debt Incurred to finance the acquisition purchase of fixed or capital assets, whether real property on which the “AMS3” data centre is located which shall be deemed Incurred pursuant to a loan any other sub-paragraph of this Section 1.2 or a Capitalized Lease pursuant to Section 1.1), including the Debt under the Existing Notes until the Existing Notes are repaid in full or otherwise discharged;
(d) the Incurrence by the Company or any Restricted Subsidiary of intercompany Debt between the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries; provided that both at the time of and immediately after giving effect to the incurrence thereof that:
(i) no Default if the Company or Event a Guarantor is the obligor on any such Debt and the lender of Default such Debt is not the Company or a Guarantor, it is unsecured and expressly subordinated in right of payment to the prior payment in full in cash (whether upon Stated Maturity, acceleration or otherwise) and the performance in full of its obligations under this Agreement; and
(ii) (x) any disposition, pledge or transfer of any such Debt to any Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) and (y) any transaction pursuant to which any Restricted Subsidiary that has Debt owing from the Company or another Restricted Subsidiary ceases to be a Restricted Subsidiary, will, in each case, be deemed to be an Incurrence of such Debt not permitted by this paragraph (d);
(e) guarantees of the Notes made in accordance with the provisions of Section 5 (Limitation on Guarantees of Debt by Restricted Subsidiaries);
(f) the Incurrence by the Company or any Restricted Subsidiary of Debt represented by Capitalized Lease Obligations, mortgage financings, purchase money obligations or other Debt Incurred or assumed in connection with the acquisition, lease, rental or development and improvement of real or personal, movable or immovable, property or assets, in each case, Incurred for the purpose of financing or refinancing all or any part of the purchase price, lease expense or cost of construction or improvement of property plant or equipment used in the Company’s or any Restricted Subsidiary’s business (including any reasonable related fees or expenses Incurred in connection with such acquisition or development); provided that the principal amount of such Debt so Incurred when aggregated with other Debt previously Incurred in reliance on this paragraph (f) and still outstanding shall have occurred and be continuing, not in the aggregate exceed the greater of: (i) €60.0 million; and (ii) the aggregate amount 6% of all Total Assets; provided further that such Debt at exists prior to or on the date of such acquisition, lease, rental or development and improvements or is created within 270 days thereafter;
(g) the Incurrence by the Company or any one time outstanding (Restricted Subsidiary of Debt arising from agreements providing for guarantees, indemnities or obligations in respect of amounts or other purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock, other than guarantees or similar credit support given by the Company or any Restricted Subsidiary of Debt Incurred by any Person acquiring all or any portion of such assets for the type described purpose of financing such acquisition; provided that the maximum aggregate liability in respect of all such Debt permitted pursuant to this clause paragraph (c) which is set forth on Schedule 8.1 hereofg) shall not at no time exceed $5,000,000the gross proceeds, and any renewals or refinancings including non-cash proceeds (the Fair Market Value of such Debt on terms substantially the same or better than those in effect non-cash proceeds being measured at the time of received and without giving effect to any subsequent changes in value), actually received from the original incurrence sale of such Debtassets;
(dh) the Incurrence by the Company or any Restricted Subsidiary of Debt under any Hedging Transactions, provided that such transaction is Agreements entered into for risk management purposes in the ordinary course of business and not for speculative purposes;
(ei) the Incurrence by the Company or any Restricted Subsidiary of Debt in respect of workers’ compensation and claims arising from judgments under similar legislation, or decrees pursuant to self-insurance obligations and not deemed to be a Default in connection with the borrowing of money or Event the obtaining of Default under subsection (g) of Section 9.1advances or credit;
(fj) the Incurrence of Debt owing to by the Company or any Restricted Subsidiary arising from (i) the honoring by a Person bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Debt is a Credit Partyextinguished within 5 business days of Incurrence, but only to (ii) bankers’ acceptances, performance, surety, judgment, appeal or similar bonds, instruments or obligations and (iii) completion guarantees provided or letters of credit obtained by the extent permitted under Section 8.7 hereofCompany or any Restricted Subsidiary in the ordinary course of business;
(gk) the Comerica Incurrence by the Company or any Restricted Subsidiary of Permitted Refinancing Debt in exchange for or the Net Cash Proceeds of which are used to refund, replace or refinance Debt Incurred by it pursuant to, or described in, paragraphs 1.1, 1.2(b), (c), (k) and (t) of this Section 1, as the Subordinated Debtcase may be;
(hl) Debt arising under customer deposits and advance payments received in the Surety Agreements, provided that ordinary course of business from customers for goods purchased in the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion ordinary course of the construction projects set forth on Schedule 8.1(i)business;
(im) additional unsecured Management Advances;
(n) any customary cash management, cash pooling or netting or setting off arrangements in the ordinary course of business;
(o) without limiting Section 5 (Limitation on Guarantees of Debt not otherwise described aboveby Restricted Subsidiaries), the guarantee by the Company or any Restricted Subsidiary of Debt that was permitted to be incurred by another provision of this covenant; provided that both at if the time of and immediately after giving effect Debt being guaranteed is subordinated to or pari passu with Debt incurred under this Agreement or is unsecured, then the guarantee shall be subordinated or pari passu or unsecured to the incurrence thereof same extent as the Debt guaranteed;
(p) without limiting Section 3 (Limitation on Liens), Debt arising by reason of any Lien granted by or applicable to such Person securing Debt of the Company or any Restricted Subsidiary so long as the Incurrence of such Debt is permitted under the terms of this Agreement;
(q) Debt consisting of (i) no Default or Event the financing of Default shall have occurred and be continuing or result therefrom and insurance premiums, (ii) take or pay obligations contained in supply agreements or (iii) rental guarantees, in each case, in the aggregate amount ordinary course of all such Debt shall not exceed $1,000,000 business;
(r) guarantees of the obligations of Qualified Joint Ventures at any one time outstanding.outstanding not exceeding the greater of €25.0 million and 3% of Total Assets in aggregate principal amount;
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, Incur any Debt (including Acquired Debt); provided that the Issuer or any Restricted Subsidiary may Incur Debt (including Acquired Debt) if after giving effect to the Incurrence of any Credit Party to Agent such Debt and the Lenders under this Agreement and/or application of the other Loan Documents;proceeds thereof, the Consolidated Interest Coverage Ratio would be greater than 2.0 to 1.0; provided further, that the aggregate principal amount of Debt that may be Incurred pursuant to the foregoing by Restricted Subsidiaries that are not Subsidiary Guarantors shall not exceed, together with any Permitted Refinancing Debt in respect thereof, $100.0 million at any one time outstanding.
(b) The restrictions in clause (a) of this Section 4.09 shall not apply to Debt that falls into any one or more of the following clauses (each of the following, “Permitted Debt”):
(i) (A) Debt existing on of the Effective Date Issuer evidenced by the Notes (but not including any Additional Notes) and set forth (B) Debt of the Subsidiary Guarantors evidenced by the Subsidiary Guarantees relating to the Notes;
(ii) Debt of the Issuer or a Restricted Subsidiary under Credit Facilities (including the Senior Credit Facility), provided that, after giving effect to any such Incurrence, the aggregate principal amount of all Debt Incurred pursuant to this clause (ii) and then outstanding shall not exceed the greater of (A) $600 million, and (B) the Borrowing Base (or similar term) as defined in Schedule 8.1 attached hereto and any renewals or refinancing the Senior Credit Facility as in effect as of the date of Incurrence of such Debt;
(iii) Debt of the Issuer or a Restricted Subsidiary in respect of Capital Lease Obligations and Purchase Money Debt, provided that:
(provided that (iA) the aggregate principal amount of such renewed or refinanced Debt shall does not exceed the Fair Market Value (on the date of the Incurrence thereof) of the Property acquired, constructed or leased, and
(B) the aggregate principal amount of all Debt Incurred and then outstanding pursuant to this clause (iii) (together with all Permitted Refinancing Debt Incurred and then outstanding in respect of Debt previously Incurred pursuant to this clause (iii)) does not exceed the original greater of (x) $100 million and (y) 2.7% of Total Assets;
(iv) Debt outstanding on of the Effective Date (less Issuer owing to and held by any principal payments Restricted Subsidiary and Debt of a Restricted Subsidiary owing to and held by the amount Issuer or any Restricted Subsidiary, provided that any subsequent issue or transfer of Capital Stock or other event that results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of any commitment reductions made thereon on such Debt (except to the Issuer or prior a Restricted Subsidiary) shall be deemed, in each case, to such renewal or refinancing), (ii) constitute the renewal or refinancing Incurrence of such Debt shall by the Issuer or such Restricted Subsidiary, as the case may be; provided, further, that if the Issuer or any Subsidiary Guarantor is the obligor on such Debt and the payee is not the Issuer or a Subsidiary Guarantor, such Debt, in order to be on substantially permitted under this clause (iv), must be expressly subordinated to the same or better terms as prior payment in effect full in cash of all Obligations then due with respect to such Debt on the Effective DateNotes, and shall otherwise be in compliance with this Agreementthe case of the Issuer or the Subsidiary Guarantee, and (iii) at in the time case of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debta Subsidiary Guarantor;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(dv) Debt under any Hedging Transactions, provided that such transaction is Interest Rate Agreements entered into by the Issuer or a Restricted Subsidiary for the purpose of limiting interest rate risk management purposes and not for speculative purposes;
(evi) Debt arising from judgments under Currency Exchange Protection Agreements entered into by the Issuer or decrees a Restricted Subsidiary for the purpose of limiting currency exchange rate risks directly related to transactions entered into by the Issuer or such Restricted Subsidiary and not deemed to be a Default or Event of Default under subsection (g) of Section 9.1for speculative purposes;
(fvii) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Acquired Debt;
(h) Debt arising under the Surety Agreements, ; provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof Incurrence of such Debt either (i) no Default the Issuer would have been able to Incur $1.00 of additional Debt pursuant to clause (a) of this Section 4.09 or Event of Default shall have occurred and be continuing or result therefrom and (ii) the Consolidated Interest Coverage Ratio would be greater than immediately prior to the related acquisition;
(viii) Debt of the Issuer or a Restricted Subsidiary outstanding on the Issue Date (other than Debt specified in clauses (b)(ii), (b)(iv), (b)(ix), (b)(x), (b)(xi) or (b)(xiii) of this Section 4.09;
(ix) Debt arising from agreements of the Issuer or a Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, Incurred or assumed in connection with the disposition of any business, assets or Capital Stock of the Issuer or any Restricted Subsidiary; provided, that the maximum aggregate amount liability in respect of all such Debt shall not at no time exceed $1,000,000 the gross proceeds including non-cash proceeds (the Fair Market Value of such non-cash proceeds being measured at the time received and without giving effect to any one time outstanding.subsequent changes in value) actually received by the Issuer and its Subsidiaries in connection with such disposition;
Appears in 1 contract
Samples: Indenture (GameStop Corp.)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness The Parent Guarantor shall not, and shall not permit any Restricted Subsidiary to, create, issue, Incur, assume, guarantee or in any manner become directly or indirectly liable with respect to or otherwise become responsible for, contingently or otherwise, the payment of any Credit Party (individually and collectively, to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) “Incur” or, as appropriate, an “Incurrence”), any Debt existing on (including any Acquired Debt); provided that the Effective Date and set forth in Schedule 8.1 attached hereto Parent Guarantor, each Issuer and any renewals or refinancing Restricted Subsidiary shall be permitted to Incur Debt (including Acquired Debt) if in each case (i) after giving effect to the Incurrence of such Debt (provided that (i) and the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount application of the original Debt outstanding proceeds thereof, on the Effective Date (less any principal payments a pro forma basis, no Default or Event of Default would occur or be continuing and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred Incurrence and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof Incurrence of such Debt and the application of the proceeds thereof, on a pro forma basis, the Consolidated Fixed Charge Coverage Ratio for the four full fiscal quarters for which financial statements are available immediately preceding the Incurrence of such Debt, taken as one period, would be greater than 2.0 to 1.0.
(b) This covenant shall not, however, prohibit the following (collectively, “Permitted Debt”):
(i) no Default the Notes and the New Unsecured Notes issued on the Issue Date;
(ii) the Incurrence by the Parent Guarantor or Event any Restricted Subsidiary of Default shall have occurred and be continuing, Debt under Credit Facilities in an aggregate principal amount not to exceed the greater of (i) €350,000,000 and (ii) an amount equal to (I) 85% of Total Receivables plus 60% of Total Inventories less (II) €250,000,000;
(iii) any Existing Debt of the Parent Guarantor or any Restricted Subsidiary (other than Debt described in clauses (i) and (ii) of this paragraph (b));
(iv) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of intercompany Debt between the Parent Guarantor and any Restricted Subsidiary or between or among Restricted Subsidiaries; provided that:
(A) if an Issuer or a Guarantor is the obligor on any such Debt, unless required by a Credit Facility and only to the extent legally permitted, such Debt must be unsecured (except in respect of the intercompany current liabilities Incurred in the ordinary course of business in connection with the cash management operations of the Parent Guarantor and its Restricted Subsidiaries); and
(B) (x) any disposition, pledge or transfer of any such Debt to a Person (other than a disposition, pledge or transfer to the Parent Guarantor or a Restricted Subsidiary) and (y) any transaction pursuant to which any Restricted Subsidiary that has Debt owing by the Parent Guarantor or another Restricted Subsidiary ceases to be a Restricted Subsidiary, will, in each case, be deemed to be an Incurrence of such Debt not permitted by this clause (iv);
(v) guarantees of the Parent Guarantor’s Debt or Debt of any Restricted Subsidiary by any Restricted Subsidiary that are permitted by and made in accordance with the provisions of Section 4.15;
(vi) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt represented by Capitalized Lease Obligations, mortgage financings, purchase money obligations or other Debt Incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property or assets, in each case, Incurred for the purpose of financing or refinancing all or any part of the purchase price, lease expense or cost of construction or improvement of property, plant, equipment or other assets used in the Parent Guarantor’s or any Restricted Subsidiary’s business (including any reasonable related fees or expenses Incurred in connection with such acquisition or development); provided that the principal amount of such Debt so Incurred when aggregated with other Debt previously Incurred in reliance on this clause (vi) and still outstanding shall not in the aggregate exceed the greater of €100,000,000 and 3.00% of Total Assets; and provided, further, that the total principal amount of all any Debt Incurred in connection with an acquisition or development permitted under this clause (vi) did not in each case at the time of Incurrence exceed (A) the Fair Market Value of the acquired or constructed asset or improvement so financed or (B) in the case of an uncompleted constructed asset, the amount of the asset to be constructed, as determined on the date the contract for construction of such asset was entered into by the Parent Guarantor or the relevant Restricted Subsidiary (including, in each case, any reasonable related fees and expenses Incurred in connection with such acquisition, construction or development);
(vii) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt at any one time outstanding (arising from agreements providing for guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock, other than guarantees or similar credit support given by the Parent Guarantor or any Restricted Subsidiary of Debt Incurred by any Person acquiring all or any portion of such assets for the type described purpose of financing such acquisition; provided that the maximum aggregate liability in respect of all such Debt permitted pursuant to this clause (c) which is set forth on Schedule 8.1 hereofvii) shall not at no time exceed $5,000,000the net proceeds, and any renewals or refinancings including non-cash proceeds (the Fair Market Value of such Debt on terms substantially the same or better than those in effect non-cash proceeds being measured at the time of received and without giving effect to any subsequent changes in value) actually received from the original incurrence sale of such Debtassets;
(dviii) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt under any Commodity Hedging Transactions, provided that such transaction is Agreements entered into for risk management purposes in the ordinary course of business and not for speculative purposes;
(eix) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt under Currency Agreements entered into in the ordinary course of business and not for speculative purposes;
(x) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt under Interest Rate Agreements entered into in the ordinary course of business and not for speculative purposes;
(xi) the Incurrence of Debt by the Parent Guarantor or any Restricted Subsidiary of Debt in respect of workers’ compensation and claims arising under similar legislation, or pursuant to self-insurance obligations and not in connection with the borrowing of money or the obtaining of advances or credit;
(xii) the Incurrence of Debt by the Parent Guarantor or any Restricted Subsidiary arising from judgments (A) the honoring by a bank or decrees other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Debt is extinguished within five Business Days of Incurrence, (B) bankers’ acceptances, performance, surety, judgment, completion, payment, appeal or similar bonds, instruments or obligations, (C) completion guarantees, advance payment, customs, VAT or other tax guarantees or similar instruments provided or letters of credit obtained by the Parent Guarantor or any Restricted Subsidiary in the ordinary course of business, and (D) the financing of insurance premiums in the ordinary course of business;
(xiii) any Debt of the Parent Guarantor or any Restricted Subsidiary Incurred pursuant to the GE Commercial Finance Facility or any other Permitted Receivables Financing in an aggregate principal amount at any one time outstanding not to exceed €45,000,000;
(xiv) the Incurrence by a Person of Permitted Refinancing Debt in exchange for or the net proceeds of which are used to refund, replace or refinance Debt Incurred by it pursuant to, or described in, paragraphs (a), (b)(i) and (b)(iii) of this Section 4.06, as the case may be;
(xv) guarantees by the Parent Guarantor or a Restricted Subsidiary of Debt Incurred by Permitted Joint Ventures in an aggregate principal amount at any one time outstanding not to exceed an amount equal to €50,000,000;
(xvi) cash management obligations and Debt in respect of netting services, pooling arrangements or similar arrangements in connection with cash management in the ordinary course of business consistent with past practice;
(xvii) take-or-pay obligations and customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business; and
(xviii) the Incurrence of Debt by the Parent Guarantor or any Restricted Subsidiary (other than and in addition to Debt permitted under clauses (i) through (xvii) above) in an aggregate principal amount at any one time outstanding not to exceed €175,000,000.
(c) Accrual of interest or dividends, the accretion of accreted value, the accretion or amortization of original issue discount and the payment of interest or dividends in the form of additional Debt of the same class will not be deemed to be an Incurrence of Debt for purposes of this Section 4.06.
(d) For purposes of determining compliance with any restriction on the Incurrence of Debt in euros where Debt is denominated in a Default different currency, the amount of such Debt will be the Euro Equivalent determined on the date of such determination; provided that if any such Debt denominated in a different currency is subject to a Currency Agreement (with respect to euros) covering principal amounts payable on such Debt, the amount of such Debt expressed in euros shall be adjusted to take into account the effect of such agreement. The principal amount of any Permitted Refinancing Debt Incurred in the same currency as the Debt being refinanced shall be the Euro Equivalent of the Debt refinanced determined on the date such Debt being refinanced was initially Incurred. Notwithstanding any other provision of this Section 4.06, for purposes of determining compliance with this Section 4.06, increases in Debt solely due to fluctuations in the exchange rates of currencies will not be deemed to exceed the maximum amount that an Issuer, the Parent Guarantor or Event a Subsidiary Guarantor may Incur under this Section 4.06.
(e) For purposes of Default determining any particular amount of Debt under subsection this Section 4.06:
(gi) obligations with respect to letters of credit, guarantees or Liens, in each case supporting Debt otherwise included in the determination of such particular amount shall not be included;
(ii) any Liens granted pursuant to the equal and ratable provisions referred to in Section 9.14.07 shall not be treated as Debt;
(iii) accrual of interest, accrual of dividends, the accretion of accreted value, the obligation to pay commitment fees and the payment of interest in the form of additional preferred stock or Debt shall not be treated as Debt; and
(iv) the reclassification of preferred stock as Debt due to a change in accounting principles shall not be treated as Debt.
(f) In the event that an item of Debt owing meets the criteria of more than one of the types of Debt described in this Section 4.06, the Parent Guarantor, in its sole discretion, shall classify items of Debt and shall only be required to a Person that is a Credit Partyinclude the amount and type of such Debt in one of such clauses and the Parent Guarantor shall be entitled to divide and classify an item of Debt in more than one of the types of Debt described in this Section 4.06, but only and may change the classification of an item of Debt (or any portion thereof) to the extent permitted under any other type of Debt described in this Section 8.7 hereof;4.06 at any time.
(g) the Comerica The amount of any Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and outstanding as of any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);date will be:
(i) additional unsecured in the case of any Debt not otherwise described aboveissued with original issue discount, provided that both at the time amount of and immediately after giving effect to the incurrence liability in respect thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and determined in accordance with IFRS;
(ii) the aggregate principal amount of all the Debt, in the case of any other Debt; and
(iii) in respect of Debt of another Person secured by a Lien on the assets of the specified Person, the lesser of:
(A) the Fair Market Value of such assets at the date of determination; and
(B) the amount of the Debt shall not exceed $1,000,000 at any one time outstandingof the other Person.
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Credit Party Debt; provided that the Company or any of its Restricted Subsidiaries may Incur Debt if, on the date of the Incurrence, after giving pro forma effect to Agent the Incurrence and the Lenders under receipt and the application of the proceeds therefrom, the Fixed Charge Coverage Ratio is not less than 2.25 to 1.0; and provided, further, that the amount of Debt Incurred pursuant to this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth paragraph by Restricted Subsidiaries that are not Guarantors shall not exceed in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the an aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding the greater of (includingi) $50.0 million and (ii) 2.5% of Adjusted Consolidated Net Tangible Assets.
(b) Notwithstanding the foregoing, without limitationthe Company and, to the extent provided below, any Restricted Subsidiary may Incur the following (“Permitted Debt”):
(1) Debt of the Company or a Restricted Subsidiary so long as such Debt is owed to the Company or a Restricted Subsidiary and which, if the obligor is the Company or a Guarantor, is subordinated in right of payment to the Notes or the Note Guarantees, as applicable; provided, however, that if such Debt is owed to a Restricted Subsidiary that is not a Guarantor such Debt shall be unsecured and subordinated in right of payment to the Notes;
(2) Debt of the Company pursuant to the Notes (other than any Additional Notes) and Debt of the Guarantors pursuant to the Note Guarantees (other than with respect to any Additional Notes);
(3) Debt of the Company or a Restricted Subsidiary (“Permitted Refinancing Debt”) constituting an extension or renewal of, replacement of, or substitution for, or issued in exchange for, or the net proceeds of which are used to repay, redeem, repurchase, refinance or refund, including by way of defeasance (all of the above, for purposes of this clause, “refinance”) then outstanding Debt in an amount not to exceed the principal amount of the Debt so refinanced, plus premiums (including tender premiums), discounts, fees and other costs and expenses (including original issue discount, upfront fees or similar fees); provided that:
(A) in case the Debt to be refinanced is subordinated in right of payment to the Notes or a Note Guarantee, the new Debt, by its terms or by the terms of any agreement or instrument pursuant to which it is outstanding, is expressly made subordinate in right of payment to the Notes or such Note Guarantee at least to the extent that the Debt to be refinanced is subordinated to the Notes or such Note Guarantee;
(B) the new Debt does not have a Stated Maturity prior to (i) the Stated Maturity of the Debt to be refinanced, and the Average Life of the new Debt is at least equal to the remaining Average Life of the Debt to be refinanced or (ii) the 91st day after the Stated Maturity of the Notes and does not have any scheduled principal payments prior to such date;
(C) in no event may Debt of the Company or any Guarantor be refinanced pursuant to this clause by means of any Debt of the type described in any Restricted Subsidiary that is not a Guarantor; and
(D) Debt Incurred pursuant to clauses (1), (4), (5), (8), (9), (10), (11), (12), (13), (14), (15), (16), (17), (18) and (20) may not be refinanced pursuant to this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debtclause;
(d4) Debt under Hedging Agreements of the Company or any Hedging Transactions, provided that such transaction is Restricted Subsidiary entered into for risk management purposes in the ordinary course of business or directly related to Debt permitted to be Incurred by the Company or any Restricted Subsidiary pursuant to this Indenture, and in each case not for speculative purposes;
(e5) Debt arising from judgments of the Company or decrees not deemed to be a Default any Restricted Subsidiary in respect of performance bonds, customs, reimbursement obligations, letters of credit, bankers’ acceptances, deposits, promissory notes, self-insurance obligations, completion guarantees and bid, surety or Event appeal bonds or Hydrocarbons balancing positions provided in the ordinary course of Default under subsection (g) of Section 9.1business;
(fi) Debt owing of the Company or any Restricted Subsidiary Incurred to finance an acquisition (or other purchase of assets), or (ii) Acquired Debt of the Company or any Restricted Subsidiary; provided, however, in the case of clauses (i) or (ii), that after giving effect to the Incurrence of such Debt pursuant to this clause, either (A) the Company or such Restricted Subsidiary would have been able to Incur $1.00 of additional Debt pursuant to the test set forth in Section 4.09(a); or (B) would not have a Person that is lower ratio set forth in Section 4.09(a) immediately after such Incurrence;
(7) Debt of the Company or any Restricted Subsidiary outstanding on the Issue Date (including, without limitation, the 7.125% Senior Notes but other than Debt outstanding under the Facility, the Corporate Revolver or the GoM Term Loan);
(8) Debt represented by guarantees of pension fund obligations of the Company or any Restricted Subsidiary required by law or regulation;
(9) Debt of the Company or any Restricted Subsidiary Incurred through the provision of bonds, guarantees, letters of credit or similar instruments required by any maritime commission or authority or other governmental or regulatory agencies, including, without limitation, customs authorities; in each case, for vessels owned or chartered by, and in the ordinary course of business of, the Company or any of its Restricted Subsidiaries at any time outstanding not to exceed the amount required by such governmental or regulatory authority;
(10) Debt of any cash pooling or other cash management agreements of the Company or any Restricted Subsidiary in place with a Credit Party, bank or financial institution but only to the extent of offsetting credit balances of the Company or any of its Restricted Subsidiaries pursuant to such cash pooling or other cash management;
(11) Debt of the Company or any Restricted Subsidiary to the extent that the net proceeds thereof are promptly deposited to defease or to satisfy and discharge the Notes in accordance with this Indenture;
(12) Debt of the Company or any of its Restricted Subsidiaries for taxes levied, assessments due and other governmental charges required to be paid as a matter of law or regulation in the ordinary course of business;
(13) Guarantees by the Company or any Guarantor of Debt permitted to be Incurred pursuant to this Section 4.09; provided that if such Debt is subordinated in right of payment to the Notes or a Note Guarantee, any such guarantee with respect to such Debt shall be subordinated in right of payment to the Notes and such Note Guarantee;
(14) Debt of the Company or any Restricted Subsidiary in respect of (i) self-insurance obligations or captive insurance companies or consisting of the financing of insurance premiums or (ii) take-or-pay obligations contained in supply agreements in the ordinary course of business;
(15) Debt of the Company or any Restricted Subsidiary under one or more Credit Facilities, lines of credit or working capital facilities (and any refinancing thereof); provided, however, that the aggregate principal amount of such Debt does not exceed at any one time outstanding the greater of (i) $3.0 billion and (ii) 35.0% of Adjusted Consolidated Net Tangible Assets;
(16) Debt of the Company or any Restricted Subsidiary with respect to reimbursement type obligations regarding worker’s compensation claims and Debt and other obligations in respect of deferred compensation of employees Incurred in the ordinary course of business or in connection with any Investment or acquisition (by merger, consolidation or amalgamation or otherwise) permitted under Section 8.7 hereofthis Indenture;
(17) Debt of the Company or any Restricted Subsidiary in the form of customer deposits and advance payments received in the ordinary course of business from customers for purchases in the ordinary course of business;
(18) Debt of the Company or any Restricted Subsidiary (and any refinancing thereof) not otherwise permitted hereunder in an aggregate principal amount equal to the aggregate Net Cash Proceeds received by the Company (other than from a Subsidiary of the Company) after the Issue Date from (i) the issuance and/or sale of its Qualified Equity Interests or (ii) as a contribution to its common equity to the extent that such Net Cash Proceeds received from such issuance, sale or contribution have not been applied to make Restricted Payments pursuant to Section 4.08(a)(3)(B) or Section 4.08(b)(4);
(19) Project Finance Debt of any Restricted Subsidiary;
(20) Debt of the Company or a Restricted Subsidiary not otherwise permitted hereunder; provided, however, that the aggregate principal amount of such Debt, and any refinancing thereof, does not exceed in an aggregate principal amount at any one time outstanding the greater of (i) $250.0 million and (ii) 3.25% of Adjusted Consolidated Net Tangible Assets; and
(21) Debt of the Company or a Restricted Subsidiary consisting of Capital Lease Obligations and Purchase Money Obligations; provided, however, that the aggregate principal amount of such Debt, and any refinancing thereof, does not exceed in an aggregate principal amount at any one time outstanding the greater of (i) $150.0 million and (ii) 3.0% of Adjusted Consolidated Net Tangible Assets; provided, further, that such Debt exists at the date of such purchase, lease or improvement, or is created within 365 days thereafter (for the avoidance of doubt, the purchase date for any asset shall be the later of the date of completion of construction or installation and the beginning of the full productive use of such asset); and
(22) Debt attributable to (but not Incurred to finance) the exercise of appraisal rights or the settlement of claims or actions (whether actual, contingent or potential) with respect to any acquisition (by merger, consolidation or amalgamation or otherwise) permitted under this Indenture.
(c) Notwithstanding anything to the contrary in this Section 4.09, the maximum amount of Debt that the Company and its Restricted Subsidiaries may Incur pursuant to this Section 4.09 shall not be deemed to be exceeded, with respect to any outstanding Debt, solely as a result of fluctuations in the exchange rate of currencies.
(d) For purposes of determining compliance with this Section 4.09, in the event that any proposed Debt meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (22) of Section 4.09(b), or is entitled to be Incurred pursuant to Section 4.09(a), the Company and its Restricted Subsidiaries will be permitted to classify such item of Debt at the time of its Incurrence in any manner that complies with this Section 4.09 or to later reclassify all or a portion of such item of Debt. Any Permitted Refinancing Debt and any Debt permitted to be Incurred under this Indenture to refinance Debt Incurred pursuant to clauses (2), (3), (4), (6), (7), (15), (18), (19), (20) and (21) of Section 4.09(b) shall be deemed to include additional Debt Incurred to pay premiums (including tender premiums), discounts, fees and other costs and expenses (including original issue discount, upfront fees or similar fees) in connection with such refinancing.
(e) The Company may not Incur any Debt that is subordinate in right of payment to other Debt of the Company unless such Debt is also subordinate in right of payment to the Notes or the relevant guarantee on substantially identical terms; provided, however, that no Debt will be deemed to be subordinated in right of payment to any other Debt of the Company solely by virtue of being unsecured, by virtue of being secured with different collateral or by virtue of being secured on a junior priority basis or by virtue of the applicability of waterfall or other payment ordering provisions affecting different tranches of Debt.
(f) The accrual of interest, the accretion or amortization of original issue discount, the payment of regularly scheduled interest in the form of additional Debt of the same instrument or the payment of regularly scheduled dividends on Disqualified Stock in the form of additional Disqualified Stock with the same terms will not be deemed to be an Incurrence of Debt for purposes of this Section 4.09; provided that any such outstanding additional Debt paid in respect of Debt Incurred pursuant to any provision of clause (b) above will be counted as Debt outstanding for purposes of any future Incurrence of Debt pursuant to Section 4.09(a).
(g) For purposes of determining compliance with any U.S. dollar-denominated restriction on the Comerica Incurrence of Debt, the U.S. dollar-equivalent principal amount of Debt and denominated in a non-U.S. currency will be calculated based on the Subordinated relevant currency exchange rate in effect on the date such Debt was Incurred or, in the case of revolving credit Debt;
(h) Debt arising under the Surety Agreements, first committed; provided that if such Debt is Incurred to refinance other Debt denominated in a non-U.S. currency, and such refinancing would cause the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both applicable U.S. dollar-denominated restriction to be exceeded if calculated at the time relevant currency exchange rate in effect on the date of and immediately after giving effect such refinancing, such U.S. dollar-denominated restriction will be deemed not to have been exceeded so long as the principal amount of such Permitted Refinancing Debt does not exceed the principal amount of such Debt being refinanced. The principal amount of any Debt Incurred to refinance other Debt, if Incurred in a different currency from the Debt being refinanced, will be calculated based on the currency exchange rate applicable to the incurrence thereof (i) no Default or Event currencies in which such Permitted Refinancing Debt is denominated that is in effect on the date of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstandingrefinancing.
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Limitation on Debt. Create(1) The Issuer shall not, and shall not permit any Restricted Subsidiary to, create, issue, incur, assume assume, guarantee or suffer in any manner become directly or indirectly liable with respect to exist or otherwise become responsible for, contingently or otherwise, the payment of (individually and collectively, to “Incur” or, as appropriate, an “Incurrence”), any Debt (including any Acquired Debt, except); provided that the Issuer and any Guarantor shall be permitted to Incur Debt (including Acquired Debt) if:
(a) Indebtedness after giving effect to the Incurrence of any Credit Party to Agent such Debt and the Lenders under this Agreement and/or application of the other Loan Documentsproceeds thereof, on a pro forma basis, no Default or Event of Default would occur or be continuing;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event Incurrence and after giving effect to the Incurrence of Default has occurred such Debt and is continuing or would result from the renewal or refinancing application of the proceeds thereof, on a pro forma basis, the Consolidated Fixed Charge Coverage Ratio for the four full fiscal quarters for which financial statements are available immediately preceding the Incurrence of such Debt, taken as one period, would be greater than 2.00 to 1.00; and
(c) if such Debt is Senior Debt, at the time of such Incurrence and after giving effect to the Incurrence of such Senior Debt and the application of the proceeds thereof, on a pro forma basis, the Consolidated Senior Leverage Ratio for the four full fiscal quarters for which financial statements are available immediately preceding the Incurrence of such Senior Debt, taken as one period, would be less than 4.00 to 1.00.
(2) This Section 4.04 shall not, however, prohibit the following (collectively, “Permitted Debt”):
(a) the Incurrence by the Issuer or any Restricted Subsidiary of Debt under Credit Facilities in an aggregate principal amount at any one time outstanding not to exceed an amount equal to (i) €100.0 million, plus (ii) in the case of any refinancing of any Debt permitted under this clause, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing;
(b) the Incurrence by the Issuer of Debt pursuant to the Notes (other than Additional Notes) and the Incurrence of Debt by the Guarantors pursuant to the Guarantees (other than Guarantees of Additional Notes);
(c) any Debt of Borrowers the Issuer or any Restricted Subsidiary incurred outstanding on the Issue Date (other than (i) Debt described in Section 4.04(2)(a) or Section 4.04(2)(b) or (ii) Debt Incurred to finance the acquisition purchase of fixed or capital assets, whether real property on which the AMS3 data centre is located which shall be deemed Incurred pursuant to a loan any other clause of Section 4.04(2) or a Capitalized Lease pursuant to Section 4.04(1)), including the Existing Notes until the Existing Notes are repaid in full or otherwise discharged; InterXion Holding N.V. Indenture Page 47
(d) the Incurrence by the Issuer or any Restricted Subsidiary of intercompany Debt between the Issuer and any Restricted Subsidiary or between or among Restricted Subsidiaries; provided that both at the time of and immediately after giving effect to the incurrence thereof that:
(i) no Default if the Issuer or Event a Guarantor is the obligor on any such Debt and the lender of Default shall have occurred such Debt is not the Issuer or a Guarantor, it is unsecured and be continuingexpressly subordinated in right of payment to the prior payment in full in cash (whether upon Stated Maturity, acceleration or otherwise) and the performance in full of its obligations under the Notes or its Guarantee, as the case may be; and
(ii) (x) any disposition, pledge or transfer of any such Debt to any Person (other than a disposition, pledge or transfer to the Issuer or a Restricted Subsidiary) and (y) any transaction pursuant to which any Restricted Subsidiary that has Debt owing from the Issuer or another Restricted Subsidiary ceases to be a Restricted Subsidiary, shall, in each case, be deemed to be an Incurrence of such Debt not permitted by Section 4.04(2)(d);
(e) guarantees of the Notes made in accordance with the provisions of Section 4.11;
(f) the Incurrence by the Issuer or any Restricted Subsidiary of Debt represented by Capitalized Lease Obligations, mortgage financings, purchase money obligations or other Debt Incurred or assumed in connection with the acquisition, lease, rental or development and improvement of real or personal, movable or immovable, property or assets, in each case, Incurred for the purpose of financing or refinancing all or any part of the purchase price, lease expense or cost of construction or improvement of property plant or equipment used in the Issuer’s or any Restricted Subsidiary’s business (including any reasonable related fees or expenses Incurred in connection with such acquisition or development); provided that the principal amount of such Debt so Incurred when aggregated with other Debt previously Incurred in reliance on this clause (f) and still outstanding shall not in the aggregate amount exceed the greater of all €60.0 million and 6% of Total Assets; provided further that such Debt at exists prior to or on the date of such acquisition, lease, rental or development and improvement or is created within 270 days thereafter;
(g) the Incurrence by the Issuer or any one time outstanding (Restricted Subsidiary of Debt arising from agreements providing for guarantees, indemnities or obligations in respect of earnouts or other purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock, other than guarantees or similar credit support given by the Issuer or any Restricted Subsidiary of Debt Incurred by any Person acquiring all or any portion of such assets for the type described purpose of financing such acquisition; provided that the maximum aggregate liability in respect of all such Debt permitted pursuant to this clause (c) which is set forth on Schedule 8.1 hereofg) shall not at no time exceed $5,000,000the gross proceeds, and any renewals or refinancings including non-cash proceeds (the Fair Market Value of such Debt on terms substantially the same or better than those in effect non-cash proceeds being measured at the time of received and without giving effect to any subsequent changes in value), actually received from the original incurrence sale of such Debtassets;
(dh) the Incurrence by the Issuer or any Restricted Subsidiary of Debt under any Hedging Transactions, provided that such transaction is Agreements entered into for risk management purposes in the ordinary course of business and not for speculative purposes;
(ei) the Incurrence by the Issuer or any Restricted Subsidiary of Debt in respect of workers’ compensation and claims arising from judgments under similar legislation, or decrees pursuant to self-insurance obligations and not deemed to be a Default in connection with the borrowing of money or Event the obtaining of Default under subsection (g) of Section 9.1advances or credit;
(fj) the Incurrence of Debt owing to by the Issuer or any Restricted Subsidiary arising from (i) the honoring by a Person bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Debt is a Credit Partyextinguished within 5 business days of Incurrence, but only to (ii) bankers’ acceptances, performance, surety, judgment, appeal or similar bonds, instruments or obligations and (iii) completion guarantees provided or letters of credit obtained by the extent permitted under Section 8.7 hereofIssuer or any Restricted Subsidiary in the ordinary course of business;
(gk) the Comerica Incurrence by the Issuer or any Restricted Subsidiary of Permitted Refinancing Debt in exchange for or the net proceeds of which are used to refund, replace or refinance Debt Incurred by it pursuant to, or described in Section 4.04(1), Section 4.04(2)(b), Section 4.04(2)(c), Section 4.04(2)(k) and Section 4.04(2)(t), as the Subordinated Debtcase may be;
(hl) Debt arising under Customer deposits and advance payments received in the Surety Agreements, provided that ordinary course of business from customers for goods purchased in the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion ordinary course of the construction projects set forth on Schedule 8.1(i)business;
(im) additional unsecured Management Advances;
(n) any customary cash management, cash pooling or netting or setting off arrangements in the ordinary course of business;
(o) without limiting Section 4.11 the guarantee by the Issuer or any Restricted Subsidiary of Debt not otherwise described above, that was permitted to be incurred by another provision of this covenant; provided that both at if the time of and immediately after giving effect Debt being guaranteed is subordinated to the incurrence thereof Notes or is unsecured, then the guarantee shall be subordinated or unsecured to the same extent as the Debt guaranteed;
(p) without limiting Section 4.05, Debt arising by reason of any Lien granted by or applicable to such Person securing Debt of the Issuer or any Restricted Subsidiary so long as the Incurrence of such Debt is permitted under the terms of this Indenture;
(q) Debt consisting of (i) no Default or Event the financing of Default shall have occurred and be continuing or result therefrom and insurance premiums, (ii) take or pay obligations contained in supply agreements or (iii) rental guarantees, in each case, in the aggregate amount ordinary course of all such Debt shall not exceed $1,000,000 business; (r) guarantees of the obligations of Qualified Joint Ventures at any one time outstanding.outstanding not exceeding the greater of €25.0 million and 3% of Total Assets in aggregate principal amount;
Appears in 1 contract
Samples: Indenture (InterXion Holding N.V.)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness The Parent Guarantor shall not, and shall not permit any Restricted Subsidiary to, create, issue, Incur, assume, guarantee or in any manner become directly or indirectly liable with respect to or otherwise become responsible for, contingently or otherwise, the payment of any Credit Party (individually and collectively, to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) “Incur” or, as appropriate, an “Incurrence”), any Debt existing on (including any Acquired Debt); provided that the Effective Date and set forth in Schedule 8.1 attached hereto Parent Guarantor, the Borrowers and any renewals or refinancing Restricted Subsidiary shall be permitted to Incur Debt (including Acquired Debt) if in each case (i) after giving effect to the Incurrence of such Debt (provided that (i) and the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount application of the original Debt outstanding proceeds thereof, on the Effective Date (less any principal payments a pro forma basis, no Default or Event of Default would occur or be continuing and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred Incurrence and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof Incurrence of such Debt and the application of the proceeds thereof, on a pro forma basis, the Consolidated Fixed Charge Coverage Ratio for the four full fiscal quarters for which financial statements are available immediately preceding the Incurrence of such Debt, taken as one period, would be greater than 2.0 to 1.0.
(b) Section 8.1(a) shall not, however, prohibit the following (collectively, “Permitted Debt”):
(i) no Default Debt arising under the Senior Finance Documents Incurred on the Closing Date that constitutes “Permitted Refinancing Debt” as defined in, and in accordance with, the indenture governing the July 2012 Secured Notes;
(ii) the Incurrence by the Parent Guarantor or Event any Restricted Subsidiary of Default shall have occurred and be continuing, Debt under Credit Facilities in an aggregate principal amount not to exceed the greater of (i) €350,000,000 and (ii) an amount equal to (I) 85% of Total Receivables plus 60% of Total Inventories less (II) €250,000,000;
(iii) (x) any Debt of the Parent Guarantor or any Restricted Subsidiary (other than Debt described in clauses (i) and (ii) of this Section 8.1(b)) outstanding on the Closing Date;
(iv) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of intercompany Debt between the Parent Guarantor and any Restricted Subsidiary or between or among Restricted Subsidiaries; provided that:
(A) if a Borrower or a Guarantor is the obligor on any such Debt, unless required by a Credit Facility and only to the extent legally permitted, such Debt must be unsecured (except in respect of the intercompany current liabilities Incurred in the ordinary course of business in connection with the cash management operations of the Parent Guarantor and its Restricted Subsidiaries); and
(B) (x) any disposition, pledge or transfer of any such Debt to a Person (other than a disposition, pledge or transfer to the Parent Guarantor or a Restricted Subsidiary) and (y) any transaction pursuant to which any Restricted Subsidiary that has Debt owing by the Parent Guarantor or another Restricted Subsidiary ceases to be a Restricted Subsidiary, will, in each case, be deemed to be an Incurrence of such Debt not permitted by this clause (iv);
(v) guarantees of the Parent Guarantor’s Debt or Debt of any Restricted Subsidiary by any Restricted Subsidiary that are permitted by and made in accordance with the provisions of Section 8.6;
(vi) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt represented by Capitalized Lease Obligations, mortgage financings, purchase money obligations or other Debt Incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property or assets, in each case, Incurred for the purpose of financing or refinancing all or any part of the purchase price, lease expense or cost of construction or improvement of property, plant, equipment or other assets used in the Parent Guarantor’s or any Restricted Subsidiary’s business (including any reasonable related fees or expenses Incurred in connection with such acquisition or development); provided that the principal amount of such Debt so Incurred when aggregated with other Debt previously Incurred in reliance on this clause (vi) and still outstanding shall not in the aggregate exceed the greater of €100,000,000 and 3.00% of Total Assets; and provided, further, that the total principal amount of all any Debt Incurred in connection with an acquisition or development permitted under this clause (vi) did not in each case at the time of Incurrence exceed (A) the Fair Market Value of the acquired or constructed asset or improvement so financed or (B) in the case of an uncompleted constructed asset, the amount of the asset to be constructed, as determined on the date the contract for construction of such asset was entered into by the Parent Guarantor or the relevant Restricted Subsidiary (including, in each case, any reasonable related fees and expenses Incurred in connection with such acquisition, construction or development);
(vii) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt at any one time outstanding (arising from agreements providing for guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock, other than guarantees or similar credit support given by the Parent Guarantor or any Restricted Subsidiary of Debt Incurred by any Person acquiring all or any portion of such assets for the type described purpose of financing such acquisition; provided that the maximum aggregate liability in respect of all such Debt permitted pursuant to this clause (c) which is set forth on Schedule 8.1 hereofvii) shall not at no time exceed $5,000,000the net proceeds, and any renewals or refinancings including non-cash proceeds (the Fair Market Value of such Debt on terms substantially the same or better than those in effect non-cash proceeds being measured at the time of received and without giving effect to any subsequent changes in value) actually received from the original incurrence sale of such Debtassets;
(dviii) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt under any Commodity Hedging Transactions, provided that such transaction is Agreements entered into for risk management purposes in the ordinary course of business and not for speculative purposes;
(eix) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt under Currency Agreements entered into in the ordinary course of business and not for speculative purposes;
(x) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt under Interest Rate Agreements entered into in the ordinary course of business and not for speculative purposes;
(xi) the Incurrence of Debt by the Parent Guarantor or any Restricted Subsidiary of Debt in respect of workers’ compensation and claims arising under similar legislation, or pursuant to self-insurance obligations and not in connection with the borrowing of money or the obtaining of advances or credit;
(xii) the Incurrence of Debt by the Parent Guarantor or any Restricted Subsidiary arising from judgments (A) the honoring by a bank or decrees other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Debt is extinguished within 5 Business Days of Incurrence, (B) bankers’ acceptances, performance, surety, judgment, completion, payment, appeal or similar bonds, instruments or obligations, (C) completion guarantees, advance payment, customs, VAT or other tax guarantees or similar instruments provided or letters of credit obtained by the Parent Guarantor or any Restricted Subsidiary in the ordinary course of business, and (D) the financing of insurance premiums in the ordinary course of business;
(xiii) any Debt of the Parent Guarantor or any Restricted Subsidiary Incurred pursuant to the GE Commercial Finance Facility or any other Permitted Receivables Financing in an aggregate principal amount at any one time outstanding not to exceed €45,000,000;
(xiv) the Incurrence by a Person of Permitted Refinancing Debt in exchange for or the net proceeds of which are used to refund, replace or refinance Debt Incurred by it pursuant to, or described in, paragraphs (a), (b)(i) and (b)(iii) of this Section 8.1, as the case may be;
(xv) guarantees by the Parent Guarantor or a Restricted Subsidiary of Debt Incurred by Permitted Joint Ventures in an aggregate principal amount at any one time outstanding not to exceed an amount equal to €50,000,000;
(xvi) cash management obligations and Debt in respect of netting services, pooling arrangements or similar arrangements in connection with cash management in the ordinary course of business consistent with past practice;
(xvii) take-or-pay obligations and customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business; and
(xviii) the Incurrence of Debt by the Parent Guarantor or any Restricted Subsidiary (other than and in addition to Debt permitted under clauses (i) through (xvii) of this Section 8.1(b)) in an aggregate principal amount at any one time outstanding not to exceed €175,000,000.
(c) Accrual of interest or dividends, the accretion of accreted value, the accretion or amortization of original issue discount and the payment of interest or dividends in the form of additional Debt of the same class will not be deemed to be an Incurrence of Debt for purposes of this Section 8.1.
(d) For purposes of determining compliance with any restriction on the Incurrence of Debt in euros where Debt is denominated in a Default different currency, the amount of such Debt will be the Euro Equivalent determined on the date of such determination; provided that if any such Debt denominated in a different currency is subject to a Currency Agreement (with respect to euros) covering principal amounts payable on such Debt, the amount of such Debt expressed in euros shall be adjusted to take into account the effect of such agreement. The principal amount of any Permitted Refinancing Debt Incurred in the same currency as the Debt being refinanced shall be the Euro Equivalent of the Debt refinanced determined on the date such Debt being refinanced was initially Incurred. Notwithstanding any other provision of this Section 8.1, for purposes of determining compliance with this Section 8.1, increases in Debt solely due to fluctuations in the exchange rates of currencies will not be deemed to exceed the maximum amount that a Borrower, the Parent Guarantor or Event a Subsidiary Guarantor may Incur under this Section 8.1.
(e) For purposes of Default determining any particular amount of Debt under subsection this Section 8.1:
(gi) obligations with respect to letters of credit, guarantees or Liens, in each case supporting Debt otherwise included in the determination of such particular amount shall not be included;
(ii) any Liens granted pursuant to the equal and ratable provisions referred to in Section 9.18.2 shall not be treated as Debt;
(iii) accrual of interest, accrual of dividends, the accretion of accreted value, the obligation to pay commitment fees and the payment of interest in the form of additional preferred stock or Debt shall not be treated as Debt; and
(iv) the reclassification of preferred stock as Debt due to a change in accounting principles shall not be treated as Debt.
(f) In the event that an item of Debt owing meets the criteria of more than one of the types of Debt described in this Section 8.1, the Parent Guarantor, in its sole discretion, shall classify items of Debt and shall only be required to a Person that is a Credit Partyinclude the amount and type of such Debt in one of such clauses and the Parent Guarantor shall be entitled to divide and classify an item of Debt in more than one of the types of Debt described in this Section 8.1, but only and may change the classification of an item of Debt (or any portion thereof) to the extent permitted under any other type of Debt described in this Section 8.7 hereof;8.1 at any time.
(g) the Comerica The amount of any Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and outstanding as of any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);date will be:
(i) additional unsecured in the case of any Debt not otherwise described aboveissued with original issue discount, provided that both at the time amount of and immediately after giving effect to the incurrence liability in respect thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and determined in accordance with IFRS;
(ii) the aggregate principal amount of all the Debt, in the case of any other Debt; and
(iii) in respect of Debt of another Person secured by a Lien on the assets of the specified Person, the lesser of:
(A) the Fair Market Value of such assets at the date of determination; and
(B) the amount of the Debt shall not exceed $1,000,000 at any one time outstandingof the other Person.
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness The Parent Guarantor shall not, and shall not permit any Restricted Subsidiary to, create, issue, Incur, assume, guarantee or in any manner become directly or indirectly liable with respect to or otherwise become responsible for, contingently or otherwise, the payment of any Credit Party (individually and collectively, to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) “Incur” or, as appropriate, an “Incurrence”), any Debt existing on (including any Acquired Debt); provided that the Effective Date and set forth in Schedule 8.1 attached hereto Parent Guarantor, each Issuer and any renewals or refinancing Restricted Subsidiary shall be permitted to Incur Debt (including Acquired Debt) if in each case (i) after giving effect to the Incurrence of such Debt (provided that (i) and the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount application of the original Debt outstanding proceeds thereof, on the Effective Date (less any principal payments a pro forma basis, no Default or Event of Default would occur or be continuing and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred Incurrence and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof Incurrence of such Debt and the application of the proceeds thereof, on a pro forma basis, the Consolidated Fixed Charge Coverage Ratio for the four full fiscal quarters for which financial statements are available immediately preceding the Incurrence of such Debt, taken as one period, would be greater than 2.0 to 1.0.
(b) Section 4.06(a) shall not, however, prohibit the following (collectively, “Permitted Debt”):
(i) no Default the Notes issued on the Issue Date;
(ii) the Incurrence by the Parent Guarantor or Event any Restricted Subsidiary of Default shall have occurred and be continuing, Debt under Credit Facilities in an aggregate principal amount not to exceed the greater of (i) €350,000,000 and (ii) an amount equal to (I) 85% of Total Receivables plus 60% of Total Inventories less (II) €250,000,000;
(iii) any Existing Debt of the Parent Guarantor or any Restricted Subsidiary (other than Debt described in clauses (i) and (ii) of this Section 4.06(b));
(iv) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of intercompany Debt between the Parent Guarantor and any Restricted Subsidiary or between or among Restricted Subsidiaries; provided that:
(A) if an Issuer or a Guarantor is the obligor on any such Debt, unless required by a Credit Facility and only to the extent legally permitted, such Debt must be unsecured (except in respect of the intercompany current liabilities Incurred in the ordinary course of business in connection with cash management, cash pooling, tax and accounting operations of the Parent Guarantor and its Restricted Subsidiaries); and
(B) (x) any disposition, pledge or transfer of any such Debt to a Person (other than a disposition, pledge or transfer to the Parent Guarantor or a Restricted Subsidiary) and (y) any transaction pursuant to which any Restricted Subsidiary that has Debt owing by the Parent Guarantor or another Restricted Subsidiary ceases to be a Restricted Subsidiary, will, in each case, be deemed to be an Incurrence of such Debt not permitted by this clause (iv);
(v) guarantees of the Parent Guarantor or any Restricted Subsidiary of Debt of the Parent Guarantor or any Restricted Subsidiary to the extent that the guaranteed Debt was permitted to be incurred by another provision of this Section 4.06;
(vi) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt represented by Capitalized Lease Obligations, mortgage financings, purchase money obligations or other Debt Incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property or assets, in each case, Incurred for the purpose of financing or refinancing all or any part of the purchase price, lease expense or cost of construction or improvement of property, plant, equipment or other assets used in the Parent Guarantor’s or any Restricted Subsidiary’s business (including any reasonable related fees or expenses Incurred in connection with such acquisition or development); provided that the principal amount of such Debt so Incurred when aggregated with other Debt previously Incurred in reliance on this clause (vi) and still outstanding shall not in the aggregate exceed the greater of €150,000,000 and 2.0% of Total Assets; and provided, further, that the total principal amount of all any Debt Incurred in connection with an acquisition or development permitted under this clause (vi) did not in each case at the time of Incurrence exceed (A) the Fair Market Value of the acquired or constructed asset or improvement so financed or (B) in the case of an uncompleted constructed asset, the amount of the asset to be constructed, as determined on the date the contract for construction of such asset was entered into by the Parent Guarantor or the relevant Restricted Subsidiary (including, in each case, any reasonable related fees and expenses Incurred in connection with such acquisition, construction or development);
(vii) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt at any one time outstanding (arising from agreements providing for guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock (other than guarantees or similar credit support given by the Parent Guarantor or any Restricted Subsidiary of Debt Incurred by any Person acquiring all or any portion of such assets for the type described purpose of financing such acquisition); provided that the maximum aggregate liability in respect of all such Debt permitted pursuant to this clause (c) which is set forth on Schedule 8.1 hereofvii) shall not at no time exceed $5,000,000the net proceeds, and any renewals or refinancings including non-cash proceeds (the Fair Market Value of such Debt on terms substantially the same or better than those in effect non-cash proceeds being measured at the time of received and without giving effect to any subsequent changes in value) actually received from the original incurrence sale of such Debtassets;
(dviii) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt under any Commodity Hedging Transactions, provided that such transaction is Agreements entered into for risk management purposes in the ordinary course of business and not for speculative purposes;
(eix) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt arising from judgments or decrees under Currency Agreements entered into in the ordinary course of business and not deemed to be a Default or Event of Default under subsection (g) of Section 9.1for speculative purposes;
(fx) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt owing to a Person that is a Credit Party, but only to under Interest Rate Agreements entered into in the extent permitted under Section 8.7 hereofordinary course of business and not for speculative purposes;
(gxi) the Comerica Incurrence of Debt by the Parent Guarantor or any Restricted Subsidiary of Debt in respect of workers’ compensation and claims arising under similar legislation, or pursuant to self-insurance obligations and not in connection with the Subordinated Debtborrowing of money or the obtaining of advances or credit;
(hxii) the Incurrence of Debt by the Parent Guarantor or any Restricted Subsidiary arising under from (A) the Surety Agreementshonoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Debt is extinguished within five Business Days of Incurrence, (B) bankers’ acceptances, performance, surety, judgment, completion, payment, appeal or similar bonds, instruments or obligations, (C) completion guarantees, advance payment, customs, VAT or other tax guarantees or similar instruments provided or letters of credit obtained by the Borrowers shall promptly terminate Parent Guarantor or any Restricted Subsidiary in the Liberty Mutual Indemnity Agreement ordinary course of business, and any other Bond Documents related thereto following (D) the completion financing of insurance premiums in the construction projects set forth on Schedule 8.1(i)ordinary course of business;
(xiii) any Debt of the Parent Guarantor or any Restricted Subsidiary Incurred pursuant to any Permitted Receivables Financing;
(xiv) the Incurrence by a Person of Permitted Refinancing Debt in exchange for or the net proceeds of which are used to refund, replace or refinance Debt Incurred by it pursuant to, or described in, Section 4.06(a), sub-clauses (i) additional unsecured and (iii), this sub-clause (xiv) and sub-clauses (xviii), (xix) and (xx) of this Section 4.06(b), as the case may be;
(xv) guarantees by the Parent Guarantor or a Restricted Subsidiary of Debt Incurred by Permitted Joint Ventures in an aggregate principal amount at any one time outstanding not to exceed an amount equal to the greater of €75,000,000 and 1.0% of Total Assets;
(xvi) cash management obligations and Debt in respect of netting services, pooling arrangements or similar arrangements in connection with cash management in the ordinary course of business consistent with past practice;
(xvii) (i) take-or-pay obligations in the ordinary course of business, (ii) customer deposits and advance payments in the ordinary course of business received from customers for goods or services purchased in the ordinary course of business and (iii) manufacturer, vendor financing, customer and supply arrangements in the ordinary course of business;
(xviii) the Incurrence of Debt by the Parent Guarantor or any Restricted Subsidiary (other than and in addition to Debt permitted under clauses (i) through (xvii) above and clauses (xix) and (xx) below) in an aggregate principal amount at any one time outstanding not to exceed, together with any Permitted Refinancing Debt in respect thereof, the greater of €265,000,000 and 3.5% of Total Assets;
(xix) Debt of any Person (x) Incurred and outstanding on the date on which such Person becomes a Restricted Subsidiary of the Parent Guarantor or another Restricted Subsidiary of the Parent Guarantor or is merged, consolidated, amalgamated or otherwise described abovecombined with (including pursuant to any acquisition of assets and assumption of related liabilities) the Parent Guarantor or any Restricted Subsidiary or (y) Incurred to provide all or any portion of the funds utilized to consummate the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Parent Guarantor or a Restricted Subsidiary; provided, provided however, with respect to each of sub-clause (x) and (y) of this Section 4.06(b)(xix), that both at the time of and immediately such acquisition or other transaction (1) the Parent Guarantor would have been able to Incur €1.00 of additional Indebtedness pursuant to Section 4.06(a) after giving effect to the incurrence thereof Incurrence of such Indebtedness pursuant to this Section 4.06(b)(xix) or (2) the Fixed Charge Coverage Ratio of the Parent Guarantor and its Restricted Subsidiaries would not be less than it was immediately prior to giving pro forma effect to such acquisition or other transaction; and
(xx) ontribution Debt.
(c) Accrual of interest or dividends, the accretion of accreted value, the accretion or amortization of original issue discount and the payment of interest or dividends in the form of additional Debt of the same class will not be deemed to be an Incurrence of Debt for purposes of this Section 4.06.
(d) For purposes of determining compliance with any restriction on the Incurrence of Debt in euros where Debt is denominated in a different currency, the amount of such Debt will be the Euro Equivalent determined on the date of such determination; provided that if any such Debt denominated in a different currency is subject to a Currency Agreement (with respect to euros) covering principal amounts payable on such Debt, the amount of such Debt expressed in euros shall be adjusted to take into account the effect of such agreement. The principal amount of any Permitted Refinancing Debt Incurred in the same currency as the Debt being refinanced shall be the Euro Equivalent of the Debt refinanced determined on the date such Debt being refinanced was initially Incurred. Notwithstanding any other provision of this Section 4.06, for purposes of determining compliance with this Section 4.06, increases in Debt solely due to fluctuations in the exchange rates of currencies will not be deemed to exceed the maximum amount that an Issuer, the Parent Guarantor or a Subsidiary Guarantor may Incur under this Section 4.06.
(e) For purposes of determining any particular amount of Debt under this Section 4.06:
(i) no Default obligations with respect to letters of credit, guarantees or Event Liens, in each case supporting Debt otherwise included in the determination of Default such particular amount shall have occurred not be included;
(ii) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.07 shall not be continuing treated as Debt;
(iii) accrual of interest, accrual of dividends, the accretion of accreted value, the obligation to pay commitment fees and the payment of interest in the form of additional preferred stock or result therefrom Debt shall not be treated as Debt; and
(iv) the reclassification of preferred stock as Debt due to a change in accounting principles shall not be treated as Debt.
(f) In the event that an item of Debt meets the criteria of more than one of the types of Debt described in this Section 4.06, the Parent Guarantor, in its sole discretion, shall classify items of Debt and shall only be required to include the amount and type of such Debt in one of such clauses and the Parent Guarantor shall be entitled to divide and classify an item of Debt in more than one of the types of Debt described in this Section 4.06, and may change the classification of an item of Debt (or any portion thereof) to any other type of Debt described in this Section 4.06 at any time.
(g) The amount of any Debt outstanding as of any date will be:
(i) in the case of any Debt issued with original issue discount, the amount of the liability in respect thereof determined in accordance with IFRS;
(ii) the aggregate principal amount of all the Debt, in the case of any other Debt; and
(iii) in respect of Debt of another Person secured by a Lien on the assets of the specified Person, the lesser of:
(A) the Fair Market Value of such assets at the date of determination; and
(B) the amount of the Debt shall not exceed $1,000,000 at any one time outstandingof the other Person.
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Credit Party Debt; provided that the Company or any of its Restricted Subsidiaries may Incur Debt if, on the date of the Incurrence, after giving pro forma effect to Agent the Incurrence and the Lenders under receipt and the application of the proceeds therefrom, the Fixed Charge Coverage Ratio is not less than 2.25 to 1.0; and provided, further, that the amount of Debt Incurred pursuant to this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth paragraph by Restricted Subsidiaries that are not Guarantors shall not exceed in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the an aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding the greater of (includingi) $50.0 million and (ii) 2.5% of Adjusted Consolidated Net Tangible Assets.
(b) Notwithstanding the foregoing, without limitationthe Company and, to the extent provided below, any Restricted Subsidiary may Incur the following (“Permitted Debt”):
(1) Debt of the Company or a Restricted Subsidiary so long as such Debt is owed to the Company or a Restricted Subsidiary and which, if the obligor is the Company or a Guarantor, is subordinated in right of payment to the Notes or the Note Guarantees, as applicable; provided, however, that if such Debt is owed to a Restricted Subsidiary that is not a Guarantor such Debt shall be unsecured and subordinated in right of payment to the Notes;
(2) Debt of the Company pursuant to the Notes (other than any Additional Notes) and Debt of the Guarantors pursuant to the Note Guarantees (other than with respect to any Additional Notes);
(3) Debt of the Company or a Restricted Subsidiary (“Permitted Refinancing Debt”) constituting an extension or renewal of, replacement of, or substitution for, or issued in exchange for, or the net proceeds of which are used to repay, redeem, repurchase, refinance or refund, including by way of defeasance (all of the above, for purposes of this clause, “refinance”) then outstanding Debt in an amount not to exceed the principal amount of the Debt so refinanced, plus premiums (including tender premiums), discounts, fees and other costs and expenses (including original issue discount, upfront fees or similar fees); provided that:
(A) in case the Debt to be refinanced is subordinated in right of payment to the Notes or a Note Guarantee, the new Debt, by its terms or by the terms of any agreement or instrument pursuant to which it is outstanding, is expressly made subordinate in right of payment to the Notes or such Note Guarantee at least to the extent that the Debt to be refinanced is subordinated to the Notes or such Note Guarantee;
(B) the new Debt does not have a Stated Maturity prior to (i) the Stated Maturity of the Debt to be refinanced, and the Average Life of the new Debt is at least equal to the remaining Average Life of the Debt to be refinanced or (ii) the 91st day after the Stated Maturity of the Notes and does not have any scheduled principal payments prior to such date;
(C) in no event may Debt of the Company or any Guarantor be refinanced pursuant to this clause by means of any Debt of the type described in any Restricted Subsidiary that is not a Guarantor; and
(D) Debt Incurred pursuant to clauses (1), (4), (5), (8), (9), (10), (11), (12), (13), (14), (15), (16), (17), (18) and (20) may not be refinanced pursuant to this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debtclause;
(d4) Debt under Hedging Agreements of the Company or any Hedging Transactions, provided that such transaction is Restricted Subsidiary entered into for risk management purposes in the ordinary course of business or directly related to Debt permitted to be Incurred by the Company or any Restricted Subsidiary pursuant to this Indenture, and in each case not for speculative purposes;
(e5) Debt arising from judgments of the Company or decrees not deemed to be a Default any Restricted Subsidiary in respect of performance bonds, customs, reimbursement obligations, letters of credit, bankers’ acceptances, deposits, promissory notes, self-insurance obligations, completion guarantees and bid, surety or Event appeal bonds or hydrocarbons balancing positions provided in the ordinary course of Default under subsection (g) of Section 9.1business;
(fi) Debt owing of the Company or any Restricted Subsidiary Incurred to finance an acquisition (or other purchase of assets), or (ii) Acquired Debt of the Company or any Restricted Subsidiary; provided, however, in the case of clauses (i) or (ii), that after giving effect to the Incurrence of such Debt pursuant to this clause, either (A) the Company or such Restricted Subsidiary would have been able to Incur $1.00 of additional Debt pursuant to the test set forth in Section 4.09(a); or (B) would not have a Person that is lower ratio set forth in Section 4.09(a) immediately after such Incurrence;
(7) Debt of the Company or any Restricted Subsidiary outstanding on the Issue Date (including, without limitation, the 7.125% Senior Notes and the 7.500% Senior Notes but other than Debt outstanding under the Facility, the Corporate Revolver or the GoM Term Loan);
(8) Debt represented by guarantees of pension fund obligations of the Company or any Restricted Subsidiary required by law or regulation;
(9) Debt of the Company or any Restricted Subsidiary Incurred through the provision of bonds, guarantees, letters of credit or similar instruments required by any maritime commission or authority or other governmental or regulatory agencies, including, without limitation, customs authorities; in each case, for vessels owned or chartered by, and in the ordinary course of business of, the Company or any of its Restricted Subsidiaries at any time outstanding not to exceed the amount required by such governmental or regulatory authority;
(10) Debt of any cash pooling or other cash management agreements of the Company or any Restricted Subsidiary in place with a Credit Party, bank or financial institution but only to the extent of offsetting credit balances of the Company or any of its Restricted Subsidiaries pursuant to such cash pooling or other cash management;
(11) Debt of the Company or any Restricted Subsidiary to the extent that the net proceeds thereof are promptly deposited to defease or to satisfy and discharge the Notes in accordance with this Indenture;
(12) Debt of the Company or any of its Restricted Subsidiaries for taxes levied, assessments due and other governmental charges required to be paid as a matter of law or regulation in the ordinary course of business;
(13) Guarantees by the Company or any Guarantor of Debt permitted to be Incurred pursuant to this Section 4.09; provided that if such Debt is subordinated in right of payment to the Notes or a Note Guarantee, any such guarantee with respect to such Debt shall be subordinated in right of payment to the Notes and such Note Guarantee;
(14) Debt of the Company or any Restricted Subsidiary in respect of (i) self-insurance obligations or captive insurance companies or consisting of the financing of insurance premiums or (ii) take-or-pay obligations contained in supply agreements in the ordinary course of business;
(15) Debt of the Company or any Restricted Subsidiary under one or more Credit Facilities, lines of credit or working capital facilities (and any refinancing thereof); provided, however, that the aggregate principal amount of such Debt does not exceed at any one time outstanding the greater of (i) $3.0 billion and (ii) 35.0% of Adjusted Consolidated Net Tangible Assets;
(16) Debt of the Company or any Restricted Subsidiary with respect to reimbursement type obligations regarding worker’s compensation claims and Debt and other obligations in respect of deferred compensation of employees Incurred in the ordinary course of business or in connection with any Investment or acquisition (by merger, consolidation or amalgamation or otherwise) permitted under this Indenture;
(17) Debt of the Company or any Restricted Subsidiary in the form of customer deposits and advance payments received in the ordinary course of business from customers for purchases in the ordinary course of business;
(18) Debt of the Company or any Restricted Subsidiary (and any refinancing thereof) not otherwise permitted hereunder in an aggregate principal amount equal to the aggregate Net Cash Proceeds received by the Company (other than from a Subsidiary of the Company) after the Issue Date from (i) the issuance and/or sale of its Qualified Equity Interests or (ii) as a contribution to its common equity to the extent that such Net Cash Proceeds received from such issuance, sale or contribution have not been applied to make Restricted Payments pursuant to Section 8.7 hereof4.08(a)(3)(B) or Section 4.08(b)(4);
(19) Project Finance Debt of any Restricted Subsidiary;
(20) Debt of the Company or a Restricted Subsidiary not otherwise permitted hereunder; provided, however, that the aggregate principal amount of such Debt, and any refinancing thereof, does not exceed in an aggregate principal amount at any one time outstanding the greater of (i) $250.0 million and (ii) 3.25% of Adjusted Consolidated Net Tangible Assets; and
(21) Debt of the Company or a Restricted Subsidiary consisting of Capital Lease Obligations and Purchase Money Obligations; provided, however, that the aggregate principal amount of such Debt, and any refinancing thereof, does not exceed in an aggregate principal amount at any one time outstanding the greater of (i) $150.0 million and (ii) 3.0% of Adjusted Consolidated Net Tangible Assets; provided, further, that such Debt exists at the date of such purchase, lease or improvement, or is created within 365 days thereafter (for the avoidance of doubt, the purchase date for any asset shall be the later of the date of completion of construction or installation and the beginning of the full productive use of such asset); and
(22) Debt attributable to (but not Incurred to finance) the exercise of appraisal rights or the settlement of claims or actions (whether actual, contingent or potential) with respect to any acquisition (by merger, consolidation or amalgamation or otherwise) permitted under this Indenture.
(c) Notwithstanding anything to the contrary in this Section 4.09, the maximum amount of Debt that the Company and its Restricted Subsidiaries may Incur pursuant to this Section 4.09 shall not be deemed to be exceeded, with respect to any outstanding Debt, solely as a result of fluctuations in the exchange rate of currencies.
(d) For purposes of determining compliance with this Section 4.09, in the event that any proposed Debt meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (22) of Section 4.09(b), or is entitled to be Incurred pursuant to Section 4.09(a), the Company and its Restricted Subsidiaries will be permitted to classify such item of Debt at the time of its Incurrence in any manner that complies with this Section 4.09 or to later reclassify all or a portion of such item of Debt. Any Permitted Refinancing Debt and any Debt permitted to be Incurred under this Indenture to refinance Debt Incurred pursuant to clauses (2), (3), (4), (6), (7), (15), (18), (19), (20) and (21) of Section 4.09(b) shall be deemed to include additional Debt Incurred to pay premiums (including tender premiums), discounts, fees and other costs and expenses (including original issue discount, upfront fees or similar fees) in connection with such refinancing.
(e) The Company may not Incur any Debt that is subordinate in right of payment to other Debt of the Company unless such Debt is also subordinate in right of payment to the Notes or the relevant guarantee on substantially identical terms; provided, however, that no Debt will be deemed to be subordinated in right of payment to any other Debt of the Company solely by virtue of being unsecured, by virtue of being secured with different collateral or by virtue of being secured on a junior priority basis or by virtue of the applicability of waterfall or other payment ordering provisions affecting different tranches of Debt.
(f) The accrual of interest, the accretion or amortization of original issue discount, the payment of regularly scheduled interest in the form of additional Debt of the same instrument or the payment of regularly scheduled dividends on Disqualified Stock in the form of additional Disqualified Stock with the same terms will not be deemed to be an Incurrence of Debt for purposes of this Section 4.09; provided that any such outstanding additional Debt paid in respect of Debt Incurred pursuant to any provision of clause (b) above will be counted as Debt outstanding for purposes of any future Incurrence of Debt pursuant to Section 4.09(a).
(g) For purposes of determining compliance with any U.S. dollar-denominated restriction on the Comerica Incurrence of Debt, the U.S. dollar-equivalent principal amount of Debt and denominated in a non-U.S. currency will be calculated based on the Subordinated relevant currency exchange rate in effect on the date such Debt was Incurred or, in the case of revolving credit Debt;
(h) Debt arising under the Surety Agreements, first committed; provided that if such Debt is Incurred to refinance other Debt denominated in a non-U.S. currency, and such refinancing would cause the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both applicable U.S. dollar-denominated restriction to be exceeded if calculated at the time relevant currency exchange rate in effect on the date of and immediately after giving effect such refinancing, such U.S. dollar-denominated restriction will be deemed not to have been exceeded so long as the principal amount of such Permitted Refinancing Debt does not exceed the principal amount of such Debt being refinanced. The principal amount of any Debt Incurred to refinance other Debt, if Incurred in a different currency from the Debt being refinanced, will be calculated based on the currency exchange rate applicable to the incurrence thereof (i) no Default or Event currencies in which such Permitted Refinancing Debt is denominated that is in effect on the date of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstandingrefinancing.
Appears in 1 contract
Limitation on Debt. Create(a) The Company shall not, and shall not permit any Restricted Subsidiary to, create, issue, incur, assume assume, guarantee or suffer in any manner become directly or indirectly liable with respect to exist any Debtor otherwise become responsible for, except:
contingently or otherwise, the payment of (a) Indebtedness of any Credit Party individually and collectively, to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) “incur” or, as appropriate, an “incurrence”), any Debt existing on (including any Acquired Debt); provided that the Effective Date and set forth in Schedule 8.1 attached hereto Company and any renewals or refinancing Restricted Subsidiary will be permitted to incur Debt (including Acquired Debt) if (i) after giving effect to the incurrence of such Debt (provided that (i) and the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount application of the original Debt outstanding proceeds therefrom, on the Effective Date (less any principal payments a pro forma basis, no Default or Event of Default would occur or be continuing and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred incurrence and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof of such Debt and the application of the proceeds therefrom, on a pro forma basis, the Leverage Ratio would be less than 4.25 to 1.0.
(b) The provisions of Section 4.09(a) hereof shall not prohibit the incurrence of any of the following (collectively, “Permitted Debt”):
(1) the incurrence of Debt in respect of the Notes (excluding Additional Notes) and the Guarantees (including in respect of any Additional Notes);
(2) any Debt of the Company or any Restricted Subsidiary (other than Debt described in another clause of this paragraph) outstanding on the Issue Date;
(3) the incurrence of intercompany Debt between the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries; provided that;
(i) no Default if the Company or Event a Guarantor is the obligor on any such Debt it is (x) unsecured and (y) it is expressly subordinated in right of Default shall have occurred payment to the prior payment in full in cash (whether upon Stated Maturity, acceleration or otherwise) and be continuingthe performance in full of its obligations under the Notes or its Guarantees, and as the case may be; and
(ii) (x) any disposition, pledge or transfer of any such Debt to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) and (y) any transaction pursuant to which any Restricted Subsidiary that has Debt owing to the Company or another Wholly Owned Restricted Subsidiary ceases to be a Restricted Subsidiary, will, in each case, be deemed to be an incurrence of such Debt not permitted by this Section 4.09(b)(3);
(4) guarantees of the Company’s Debt or Debt of any Restricted Subsidiary by any Restricted Subsidiary that are permitted by and made in accordance with the provisions of Section 4.16;
(5) the incurrence by the Company or any Restricted Subsidiary of Debt represented by Capitalized Lease Obligations, asset backed financings, mortgage financings, purchase money obligations or other Debt incurred or assumed for the purpose of financing or refinancing all or any part of the purchase price, lease expense or cost of any property or asset, tangible or intangible, including network assets used in the Company’s or any Restricted Subsidiary’s business; provided that the principal amount of such Debt so incurred when aggregated with other Debt previously incurred in reliance on this Section 4.09(b)(5) (and Permitted Refinancing Debt with respect thereto) and still outstanding shall not in the aggregate exceed the greater of $50.0 million or 4.0% of the Company’s Total Assets; provided further, that the total principal amount of all any Debt incurred in connection with this Section 4.09(b)(5) did not in any case at the time of incurrence exceed (i) the Fair Market Value of the acquired or constructed asset so financed or (ii) in the case of an uncompleted constructed asset, the amount of the asset to be constructed, as determined on the date the contract for construction of such asset was entered into by the Company or the relevant Restricted Subsidiary (including, in each case, any reasonable related fees and expenses incurred in connection with such acquisition, construction or development);
(6) the incurrence by the Company or any Restricted Subsidiary of Debt at any one time outstanding (arising from agreements providing for guarantees or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock, other than guarantees or similar credit support given by the Company or any Restricted Subsidiary of Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and incurred by any renewals Person acquiring all or refinancings any portion of such assets for the purpose of financing such acquisition, provided that the maximum aggregate liability in respect of all such Debt on terms substantially permitted pursuant to this Section 4.09(b)(6) will at no time exceed the same or better than those in effect net proceeds, including non-cash proceeds (the Fair Market Value of such non-cash proceeds being measured at the time of received and without giving effect to any subsequent changes in value) actually received from the original incurrence sale of such Debtassets;
(d7) the incurrence by the Company or any Restricted Subsidiary of Debt under any Hedging Transactions, provided that such transaction is Currency Agreements entered into for risk management purposes in the ordinary course of business and not for speculative purposes;
(e) 8) the incurrence by the Company or any Restricted Subsidiary of Debt arising from judgments or decrees under Interest Rate Agreements entered into in the ordinary course of business and not deemed to be a Default or Event of Default under subsection (g) of Section 9.1for speculative purposes;
(f9) the incurrence of Debt owing by the Company or any Restricted Subsidiary of Debt in respect of workers’ compensation and claims arising under similar legislation, or pursuant to a Person that is a Credit Party, but only to self-insurance obligations and not in connection with the extent permitted under Section 8.7 hereofborrowing of money or the obtaining of advances or credit;
(g10) the Comerica incurrence of Debt by the Company or any Restricted Subsidiary arising from (i) the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Debt is extinguished within five Business Days of incurrence, (ii) bankers’ acceptances, performance, surety, judgment, appeal or similar bonds, instruments or obligations and (iii) completion guarantees provided or letters of credit obtained by the Subordinated DebtCompany or any Restricted Subsidiary in the ordinary course of business;
(h11) the incurrence by a Person of Permitted Refinancing Debt arising under in exchange for or the Surety Agreementsnet proceeds of which are used to refund, provided that replace or refinance Debt incurred by it pursuant to, or described in, Section 4.09(a), Section 4.09(b)(2), Section 4.09(b)(11), as the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i)case may be;
(12) the incurrence of Debt by the Company or any Restricted Subsidiary under any Credit Facility and the issuance and creation of letters of credit and bankers’ acceptances thereunder, in an aggregate principal amount at any one time outstanding not to exceed the greater of $100.0 million and 7.0% of the Company’s Total Assets determined as of the date of each such incurrence;
(13) Subordinated Shareholder Loans incurred by the Company;
(14) in addition to Debt referred to in clauses (1) through (13) above, the incurrence of Debt by the Company or any Restricted Subsidiary in an aggregate principal amount at any one time outstanding not to exceed the greater of $50.0 million and 4.0% of the Company’s Total Assets.
(c) The Company will not, and will not permit any Restricted Subsidiary to, incur (i) additional unsecured Debt not otherwise described secured by a Lien on any assets of the Company or any Restricted Subsidiary, (ii) Guarantor Priority Debt of a Guarantor or (iii) Debt of a Non-Guarantor Restricted Subsidiary, other than, in each case, Permitted Debt (other than Permitted Debt incurred under Section 4.09(b)(2), Section 4.09(b)(5), Section 4.09(b)(12) and Section 4.09(b)(14) above) if, provided that both at the time of such incurrence and immediately after giving effect to the incurrence thereof of such Debt and the application of the proceeds thereof, on a pro forma basis, the Priority Debt Leverage Ratio would be greater than 1.75 to 1.0.
(id) no Default or Event Notwithstanding any other provision of Default this Section 4.09, for purposes of determining compliance with this Section 4.09, increases in Debt solely due to fluctuations in the exchange rates of currencies shall have occurred and not be continuing or result therefrom and (ii) deemed to exceed the aggregate maximum amount of all Debt that the Company or a Restricted Subsidiary may incur under this Section 4.09.
(e) For purposes of determining any particular amount of Debt under this Section 4.09:
(1) obligations with respect to letters of credit, guarantees or Liens, in each case supporting Debt otherwise included in the determination of such particular amount shall not be included; and
(2) accrual of interest, accrual of dividends, the accretion of accreted value, the obligation to pay commitment fees and the payment of interest in the form of additional Debt shall not exceed $1,000,000 be treated as Debt.
(f) In the event that an item of Debt meets the criteria of more than one of the types of Debt described in this Section 4.09, the Company, in its sole discretion, shall classify items of Debt and shall only be required to include the amount and type of such Debt in one of such clauses and the Company shall be entitled to divide and classify an item of Debt in more than one of the types of Debt described in this Section 4.09, and may change the classification of an item of Debt (or any portion thereof) to any other type of Debt described in this Section 4.09 at any one time outstandingtime.
Appears in 1 contract
Samples: Indenture (Liberty Global PLC)
Limitation on Debt. Create(a) The Issuer will not, and will not permit any Restricted Subsidiary to, create, issue, incur, assume assume, guarantee or suffer to exist in any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals manner become directly or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect indirectly liable with respect to such Debt on or otherwise become responsible for, contingently or otherwise, the Effective Datepayment of (individually and collectively, and shall otherwise be in compliance with this Agreementto “incur” or, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) as appropriate, an “incurrence”), any Debt of Borrowers or (including any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease Acquired Debt); provided that both at the time of Issuer and immediately any Guarantor will be permitted to incur Debt (including Acquired Debt) if, after giving effect to the incurrence thereof of such Debt and the application of the proceeds thereof, on a pro forma basis, the Consolidated Fixed Charge Coverage Ratio for the four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Debt, taken as one period, would be greater than 2.0 to 1.0.
(b) This covenant shall not, however, prohibit the following (collectively, “Permitted Debt”):
(i) no Default or Event the incurrence by the Issuer of Default shall have occurred Debt represented by the Notes issued on the Issue Date and be continuing, and the guarantee of the Notes by any Restricted Subsidiary;
(ii) the incurrence by the Issuer or any Restricted Subsidiary of Debt under Credit Facilities in an aggregate principal amount of all such Debt at any one time outstanding not to exceed (A) $1,485,000,000 prior to the completion of the Debt Refinancing and the Escrow Release Date and (B) $1,145,000,000 after the completion of the Debt Refinancing and the Escrow Release Date, provided that the principal amount of Debt incurred pursuant to this clause (ii) to renew, refund, replace, refinance, defease or discharge any Debt incurred pursuant to this clause (ii) (a “Credit Facility Refinancing”), does not, at the time of incurrence, exceed the greater of (x) 70% of the Vessel Fair Market Value (or in the case of any other collateral, its Fair Market Value) of the collateral securing such Credit Facility after giving effect to such Credit Facility Refinancing and (y) the sum of (1) the aggregate principal amount (or if incurred with original issue discount, the aggregate accreted value) then outstanding of such Debt being refinanced and (2) an amount necessary to pay any fees and expenses, including premiums and defeasance costs, related to such refinancing;
(iii) the incurrence by the Issuer or any Restricted Subsidiary of intercompany Debt between the Issuer and any Restricted Subsidiary or between or among Restricted Subsidiaries; provided that:
(A) if the Issuer is the obligor on any such Debt and the payee is not the Issuer or a Guarantor, (x) unless required by a Credit Facility, such Debt is unsecured and (y) it is subordinated in right of payment to the Notes or Guarantees, as applicable; and
(B) (x) any disposition, pledge or transfer of any such Debt to a Person (other than a disposition, pledge or transfer to the Issuer or a Restricted Subsidiary) and (y) any transaction pursuant to which any Restricted Subsidiary that has Debt owing by the Issuer or a Restricted Subsidiary ceases to be a Restricted Subsidiary, will, in each case, be deemed to be an incurrence of such Debt not permitted by this clause (iii);
(iv) any Debt of the Issuer or any Restricted Subsidiary (other than Debt described in clauses (b)(i) and (b)(ii) of this Section 4.04) outstanding on the date of this Indenture;
(v) guarantees of the Issuer’s Debt or Debt of any Restricted Subsidiary by the Issuer or any Restricted Subsidiary; provided that the Restricted Subsidiary complies with Section 4.11;
(vi) the incurrence by the Issuer or any Restricted Subsidiary of Debt arising from customary agreements providing for guarantees, indemnities or obligations in respect of earnouts or other purchase price adjustments or, in each case, similar obligations, in connection with the acquisition or disposition of any business or assets or Person or any shares of Capital Stock of a Subsidiary, other than guarantees or similar credit support given by the Issuer or any Restricted Subsidiary of Debt incurred by any Person acquiring all or any portion of such assets for the purpose of financing such acquisition; provided that the maximum aggregate liability in respect of all such Debt permitted pursuant to this clause (vi) will at no time exceed the net proceeds, including non-cash proceeds (the Fair Market Value of such non-cash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received from such disposition;
(vii) the incurrence by the Issuer or any Restricted Subsidiary of Debt under Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements, in each case entered into not solely for speculative purposes (collectively, “Hedging Obligations”);
(viii) the incurrence by the Issuer or any Restricted Subsidiary of Debt represented by Capitalized Lease Obligations, mortgage financings or purchase money obligations or other Debt, in each case, incurred in connection with the financing of all or any part of the purchase price, charter expense, lease expense, rental payments or cost of design, construction, installation or improvement of Vessels, or any other property, plant or equipment used in the business of the Issuer or any of its Restricted Subsidiaries (including any reasonable related fees or expenses incurred in connection therewith), whether through the charter of, leasing of, or the direct purchase of, or of the Capital Stock of any Person owning, such Vessels (including any Debt deemed to be incurred in connection with such purchase) (it being understood that any such Debt may be incurred after the acquisition, purchase, charter or leasing or the construction, installation or the making of any improvement with respect to any such Vessel or container or other property, plant or equipment and shall include Debt incurred to renew, refund, replace, refinance, defease or discharge Debt incurred pursuant to this clause (viii)); provided that the principal amount of Debt incurred pursuant to this clause (viii), including all Debt incurred pursuant to this clause (viii) to renew, refund, replace, refinance, defease or discharge any Debt incurred pursuant to this clause (viii), does not, at the time of incurrence, exceed the Applicable Fair Market Value Limit;
(ix) the incurrence by the Issuer or any Restricted Subsidiary of Debt to finance the replacement (through construction or acquisition) of a Vessel upon the total loss, destruction, condemnation, confiscation, requisition, seizure or forfeiture of, or other taking of title or use of, such Vessel (collectively, a “Total Loss”) in an aggregate amount no greater than the Ready for Sea Cost for such replacement Vessel, in each case less all compensation, damages and other payments (including insurance proceeds other than in respect of business interruption insurance) received by the Issuer or any of its Restricted Subsidiaries from any Person in connection with such Total Loss in excess of amounts actually used to repay Debt secured by the Vessel subject to such Total Loss and any costs and expenses incurred by the Issuer or any of its Restricted Subsidiaries in connection with such Total Loss;
(x) the incurrence by the Issuer or any Restricted Subsidiary of Debt in relation to (A) regular maintenance required on any of the Vessels owned or chartered by the Issuer or any of its Restricted Subsidiaries, (B) dry-docking of any of the Vessels owned by the Issuer or any of its Restricted Subsidiaries and (C) any expenditures that are, or are reasonably expected to be, recoverable from insurance on such Vessels;
(xi) the incurrence by the Issuer or any Restricted Subsidiary of Debt through the provision of bonds, guarantees, letters of credit or similar instruments required by the U.S. Federal Maritime Commission or other governmental or regulatory agencies, including, without limitation, customs authorities; in each case, for Vessels owned or chartered by, or in the ordinary course of business of, the Issuer or any of its Restricted Subsidiaries;
(xii) the incurrence by the Issuer or any of its Restricted Subsidiaries of Debt in the form of customer deposits and advance payments received in the ordinary course of business from customers for services purchased in the ordinary course of business;
(xiii) the incurrence by the Issuer or any Restricted Subsidiary of Debt in any Qualified Securitization Financing;
(xiv) the incurrence by the Issuer or any Restricted Subsidiary of Debt in respect of workers’ compensation and claims arising under similar legislation, captive insurance companies, or pursuant to self-insurance obligations and not in connection with the borrowing of money or the obtaining of advances or credit;
(xv) the incurrence by the Issuer or any Restricted Subsidiary of Debt arising from (A) the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds in the ordinary course of business; provided that such Debt is extinguished within five Business Days of incurrence, (B) bankers’ acceptances, performance, surety, judgment, appeal or similar bonds, instruments or obligations, (C) completion guarantees or performance or appeal bonds provided or letters of credit obtained by the Issuer or any Restricted Subsidiary in the ordinary course of business, (D) VAT or other tax guarantees in the ordinary course of business, (E) the financing of insurance premiums in the ordinary course of business and (F) any customary cash management, cash pooling or netting or setting off arrangements;
(xvi) Debt of any Person incurred and outstanding on the type described date on which such Person becomes a Restricted Subsidiary of the Issuer or is merged, consolidated, amalgamated or otherwise combined with (including pursuant to any acquisition of assets and assumption of related liabilities) the Issuer or any Restricted Subsidiary (other than Debt incurred (A) to provide all or any portion of the funds used to consummate the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Issuer or a Restricted Subsidiary or (B) otherwise in connection with or contemplation of such acquisition); provided, however, with respect to this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000xvi), and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect that at the time of such acquisition or other transaction pursuant to which such Debt is deemed to be incurred, (x) the original incurrence Issuer could incur at least $1.00 of additional Debt under Section 4.04(a), after giving pro forma effect to such Debtacquisition or other transaction or (y) the Consolidated Fixed Charge Coverage Ratio would not be less than it was immediately prior to giving effect to such acquisition or other transaction;
(dxvii) the incurrence by the Issuer or any Restricted Subsidiary of Permitted Refinancing Debt under any Hedging Transactionsincurred to renew, provided that such transaction is entered into for risk management purposes refund, replace, refinance, defease or discharge Debt incurred by it pursuant to, or described in, Section 4.04(a) and not for speculative purposes;
clauses (ei), (iv), (ix), (x), (xvi) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection and this (gxvii) of Section 9.1;4.04(b), as the case may be; or
(fxviii) the incurrence by the Issuer or any Guarantor of Debt owing (other than and in addition to a Person that is a Credit Party, but only to the extent Debt permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
clauses (i) additional unsecured Debt not otherwise described through (xvii) above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the in an aggregate principal amount of all such Debt shall not exceed $1,000,000 at any one time outstanding, including all Permitted Refinancing Debt incurred to renew, refund, replace, refinance, defease or discharge any Debt incurred pursuant to this clause (xviii), not to exceed the greater of $75,000,000 or 3.0% of Total Assets. Accrual of interest or dividends, the accretion of accreted value, the accretion or amortization of original issue discount, the obligation to pay commitment fees, the reclassification of preferred stock as Debt due to a change in accounting principles and the payment of interest or dividends in the form of additional Debt or in the form of additional shares of the same class will not be deemed to be an incurrence of Debt for purposes of this covenant.
(c) For purposes of determining compliance with any restriction on the incurrence of Debt in dollars where Debt is denominated in a different currency, the amount of such Debt will be equal to the Dollar Equivalent determined on the date of such determination; provided that if any such Debt denominated in a different currency is subject to a Currency Agreement (with respect to dollars) covering principal amounts payable on such Debt, the amount of such Debt expressed in dollars will be adjusted to take into account the effect of such agreement. The principal amount of any Permitted Refinancing Debt incurred in the same currency as the Debt being refinanced will be the Dollar Equivalent of such Debt being refinanced determined on the date such Debt being refinanced was initially incurred, except to the extent that such Dollar Equivalent was determined based on a Currency Agreement (with respect to dollars), in which case the amount of such Permitted Refinancing Debt will be adjusted to take into account the effect of such agreement. Notwithstanding any other provision of this covenant, for purposes of determining compliance with this Section 4.04, increases in Debt solely due to fluctuations in the exchange rates of currencies or currency values will not be deemed to exceed the maximum amount that the Issuer or a Restricted Subsidiary may incur under this Section 4.04.
(d) For purposes of determining any particular amount of Debt under this Section 4.04:
(i) obligations with respect to letters of credit, guarantees or Liens, in each case supporting Debt otherwise included in the determination of such particular amount, shall not be included; and
(ii) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.05 shall not be treated as Debt.
(e) For purposes of determining any particular amount of Debt under this Section 4.04:
(i) in the case of any Debt issued with original issue discount, the amount of the liability in respect thereof determined in accordance with GAAP; and
(ii) the principal amount of the Debt, in the case of any other Debt; and
(iii) in respect of Debt of another Person secured by a Lien on the assets of the specified Person, the lesser of:
(A) the Fair Market Value of such assets at the date of determination; and
(B) the amount of the Debt of the other Person.
(f) If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Debt of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Issuer as of such date (and, if such Debt is not permitted to be incurred as of such date under this Section 4.04, such Restricted Subsidiary shall be in Default of this Section 4.04).
Appears in 1 contract
Samples: Indenture (Danaos Corp)
Limitation on Debt. Create, incur, assume or suffer to exist The Company shall not Incur any Debt, except:
(a) Indebtedness and shall not permit any Subsidiary of any Credit Party the Company to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) Incur any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing)unless, (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof Incurrence of such Debt and the receipt and application of the proceeds thereof, (i) no Default the Consolidated EBITDA to Interest Ratio of the Company for the last four full fiscal quarters for which quarterly or Event of Default shall have occurred and annual financial statements are available would be continuing, greater than 1.3 to 1 and (ii) the Consolidated Adjusted Net Worth of the Company would be greater than the Minimum Adjusted Net Worth of the Company. Notwithstanding the foregoing limitation, the Company or any Subsidiary of the Company may Incur the following Debt:
(i) Debt Incurred by the Company under its Guarantee of the FCRPC Credit Agreement or by any Subsidiary of the Company under the FCRPC Credit Agreement in an aggregate principal amount of all such Debt at any one time outstanding not to exceed $225 million, and any renewal, extension, refinancing or refunding thereof (including, without limitation, any Debt the replacement of the type described banks under the FCRPC Credit Agreement with a new group of banks) in this clause (c) which is set forth on Schedule 8.1 hereof) shall an amount which, together with any amount remaining outstanding or available under the FCRPC Credit Agreement, does not exceed $5,000,000, and any renewals 225 million; provided that such refinancing or refinancings of such refunding Debt on terms substantially does not have a Weighted Average Life that is less than the same or better than those in effect at the time Weighted Average Life of the original incurrence of such DebtDebt being refinanced or refunded;
(dii) Debt under any Hedging TransactionsPerformance guarantees and performance bonds, provided that such transaction is entered into for risk management purposes surety bonds and not for speculative purposesappeal bonds in each case incurred in the ordinary course of business and consistent with past practices;
(eiii) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1evidenced by the Securities;
(fiv) Debt owing to a Person that is a Credit Party, but only to (other than Debt described in another clause of this paragraph) outstanding on the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion date of original issuance of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately Securities after giving effect to the incurrence application of the proceeds of the Securities;
(v) Debt owed by the Company to any Wholly Owned Subsidiary of the Company for which fair value has been received or Debt owed by a Subsidiary of the Company to the Company or a Wholly Owned Subsidiary of the Company; provided, however, that (a) any such Debt owing by the Company to a Wholly Owned Subsidiary shall be Subordinated Debt evidenced by an intercompany promissory note and (b) upon either (1) the transfer or other disposition by such Wholly Owned Subsidiary or the Company of any Debt so permitted to a Person other than the Company or another Wholly Owned Subsidiary of the Company or (2) the issuance (other than directors' qualifying shares), sale, lease, transfer or other disposition of shares of Capital Stock (including by consolidation or merger) of such Wholly Owned Subsidiary to a Person other than the Company or another such Wholly Owned Subsidiary, the provisions of this clause (v) shall no longer be applicable to such Debt and such Debt shall be deemed to have been Incurred at the time of such transfer or other disposition;
(vi) Debt Incurred by a Person prior to the time (A) such Person became a Subsidiary of the Company, (B) such Person merged into or consolidated with a Subsidiary of the Company or (C) another Subsidiary of the Company merged into or consolidated with such Person (in a transaction in which such Person became a Subsidiary of the Company) which Debt was not Incurred in anticipation of such transaction and was outstanding prior to such transaction, provided that after giving pro forma effect to such transaction and -88- 92 treating any Debt as having been Incurred at the time of such transaction, the Company could Incur at least $1.00 of additional Debt pursuant to the preceding paragraph;
(vii) Development Debt Incurred by the Company or any Subsidiary of the Company; provided that the Incurrence of all such Development Debt would have been permitted under the limitations set forth in the first paragraph of this covenant on the date that the first $1.00 of such Debt was Incurred (the "Development Start Date") determined as if all such Development Debt had been incurred on the Development Start Date; provided, further that, if all such Development Debt could be Incurred by the Company or any Subsidiary of the Company on the Development Start Date in accordance with the immediately preceding proviso, then individual borrowings or draw downs in an aggregate amount of such Development Debt shall not be subject to the requirements of the first paragraph of this covenant;
(viii) Debt Incurred by the Company or any of its Subsidiaries consisting of Permitted Interest Rate, Currency or Commodity Price Agreements;
(ix) Debt which is exchanged for or the proceeds of which are used to refinance or refund, or any extension or renewal of, outstanding Debt Incurred pursuant to the preceding paragraph or clauses (iii), (iv), (vi) or (vii) of this paragraph (each of the foregoing, a "refinancing") in an aggregate principal amount not to exceed the principal amount of the Debt so refinanced plus the amount of any premium required to be paid in connection with such refinancing pursuant to the terms of the Debt so refinanced or the amount of any premium reasonably determined by the Company or the relevant Subsidiary as necessary to accomplish such refinancing by means of a tender offer or privately negotiated repurchase, plus the expenses of the Company or the Subsidiary, as the case may be, incurred in connection with such refinancing; provided, however, that (A) in the case of any refinancing of Debt which is subordinated in right of payment to the Securities, the refinancing Debt is Incurred by the Company and constitutes Subordinated Debt; (B) the refinancing Debt by its terms, or by the terms of any agreement or instrument pursuant to which such Debt is issued,
(1) does not have a Weighted Average Life less than the Weighted Average Life of the Debt being refinanced and does not have a maturity earlier than the final stated maturity of the Debt being refinanced and (2) does not permit redemption or other retirement (including pursuant to an offer to purchase) of such Debt at the option of the holder thereof prior to the final stated maturity of the Debt being refinanced, other than a redemption or other retirement at the option of the holder of such Debt (including pursuant to an offer to purchase) which is conditioned upon provisions substantially similar to those described under Section 1018 and Section 1019; and (C) in the case of any refinancing of Debt Incurred by the Company, the refinancing Debt may be Incurred only by the Company, and in the case of any refinancing of Debt Incurred by a Subsidiary, the refinancing Debt may be Incurred only by such Subsidiary; provided, further, that Debt Incurred pursuant to this clause (ix) may not be Incurred more than 45 days prior to the application of the proceeds to repay the Debt to be refinanced; and
(x) Debt Incurred by the Company or any Subsidiary of the Company not otherwise permitted to be Incurred pursuant to clauses (i) no Default or Event through (ix) above, which, together with any other outstanding Debt Incurred pursuant to this clause (x), has an aggregate principal amount not in excess of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 50 million at any one time outstanding.
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party Borrower or any of its Subsidiaries to the Administrative Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments on term Debt and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers any Borrower or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,0001,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) any Debt of any Borrower or any Subsidiary that is assumed to finance the cost of Permitted Acquisitions to the extent all such Debt at any one time outstanding does not exceed $1,000,000;
(e) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(ef) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(fg) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 8.6 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under incurred in connection with the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);Permitted Sale/Leaseback Transactions; and
(i) the guarantee of or other reimbursement obligations in connection with performance bonds issued in connection with or related to the Pipeline Systems to the extent all such Debt at any one time outstanding does not exceed $1,000,000; and
(j) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstanding. Notwithstanding the foregoing, however, Debt of the type described in clauses (c), (d) and (j) of this Section 8.1 shall not be permitted to be incurred or assumed by Bamagas until such time as the Consent is obtained and the other terms and provisions of Section 7.22 have been satisfied in full.
Appears in 1 contract
Samples: Revolving and Term Loan Credit Agreement (American Midstream Partners, LP)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or and the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 8.1(b) attached hereto and any renewals or refinancing of such Debt in amounts not exceeding the scheduled amounts (provided that (i) less any required amortization according to the aggregate principal amount of such renewed or refinanced Debt shall not exceed terms thereof), on substantially the aggregate principal amount of the original Debt outstanding same terms as in effect on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers the Company or any Subsidiary a Subsidiary, excluding Debt otherwise permitted under this Section 8.1, incurred to finance the acquisition of fixed or capital assets, assets (whether pursuant to a loan or a Capitalized Lease Lease), provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, continuing and (ii) the aggregate amount of all such Debt shall not exceed Five Million Dollars ($5,000,000) at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debtoutstanding;
(d) Subordinated Debt and the Seller Notes;
(e) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(ef) Guarantee Obligations permitted under Section 8.3 or any other Loan Document;
(g) current unsecured trade, utility or nonextraordinary accounts payable (including without limitation, operating leases and short term Debt owed to vendors) arising in the ordinary course of Company's or such Subsidiary's businesses;
(h) Debt in respect of taxes, assessments or governmental charges to the extent that payment thereof shall not at the time be required to be made in accordance with Section 7.3;
(i) Debt arising from judgments or decrees in circumstances not deemed to be a Default or constituting an Event of Default under subsection (g) of Section 9.1;
(fj) Debt owing to a Person that is a Credit PartyIntercompany Loans, but only to the extent permitted under Section 8.7 hereof;
(gk) the Comerica Debt Non-current liabilities for post-employment healthcare and the Subordinated Debtother insurance benefits;
(hl) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);secured by Permitted Liens; and
(im) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 15,000,000 in aggregate principal amount at any one time outstanding.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (MSC Software Corp)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except(a) The Company:
(ai) Indebtedness will not, and will not permit any of its Subsidiaries to, Incur any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;Debt; and
(bii) will not, and will not permit any of its Subsidiaries to, Incur any Disqualified Stock, and will not permit any of its Subsidiaries to Incur any Preferred Stock (other than Disqualified Stock or Preferred Stock of Subsidiaries held by the Company or a Subsidiary, so long as it is so held); provided that the Company or any Subsidiary may Incur Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto or Disqualified Stock and any renewals or refinancing of such Debt (provided that Subsidiary may Incur Preferred Stock if, (i) on the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount date of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing)Incurrence, (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof Incurrence and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio is not less than 2.25 to 1.00, and the Leverage Ratio is not greater than 3.00 to 1.00 and (iii) no Default or Event of Default shall have occurred and be continuing.
(b) Notwithstanding the foregoing, and the Company and, to the extent provided below, any Subsidiary, as applicable, may Incur the following (“Permitted Debt”):
(i) Debt of the Company or any Subsidiary to the Company or any Subsidiary so long as such Debt continues to be owed to the Company or a Subsidiary; provided, however, that;
(A) any subsequent issuance or transfer of any Capital Stock or any other event that results in any such Subsidiary to which Debt is owed by the Company or another Subsidiary ceasing to be a Subsidiary or any subsequent transfer of any such Debt owed by the Company or a Subsidiary (except to the Company or a Subsidiary) shall be deemed, in each case, to constitute the Incurrence of such Debt by the Company thereof;
(ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause Company pursuant to the Notes (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better other than those in effect at the time of the original incurrence of such DebtAdditional Notes);
(diii) Refinancing Debt in respect of:
(A) Debt under (other than Debt owed to the Company or any Subsidiary of the Company) Incurred pursuant to paragraph (a) above (it being understood that no Debt outstanding on the Issue Date is Incurred pursuant to such paragraph (a) above), or
(B) Debt Incurred pursuant to this paragraph (b).
(iv) Hedging Transactions, provided that such transaction is Agreements of the Company or any Subsidiary entered into in the ordinary course of business for risk management bona fide hedging purposes and not for speculative purposesspeculation;
(ev) Debt arising from judgments consisting of letters of credit, banker’s acceptances, performance bonds, appeal bonds, surety bonds, bid bonds, customs bonds and other similar bonds and reimbursement obligations Incurred by the Company or decrees not deemed any Subsidiary in the ordinary course of business securing the performance of contractual, franchise or license obligations in connection with or to be a Default secure statutory, regulatory or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Partysimilar obligations, but only to or as required by applicable governmental requirements in connection with the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion operations of the construction projects set forth on Schedule 8.1(iCompany or any Subsidiary (in each case, other than for an obligation for borrowed money);
(ivi) additional unsecured Debt not otherwise described aboveAcquired Debt, provided that both at the time of and immediately that, after giving effect to the incurrence Incurrence thereof, the Company could Incur at least U.S.$1.00 of Debt under Section 4.06(a);
(vii) Debt of the Company or any Subsidiary outstanding on the Issue Date or Debt existing as of the date of the Merger or assumed as a result of the Merger other than Debt otherwise specified under any clause of this definition of Permitted Debt;
(viii) Debt of the Company or any Subsidiary, which may include Capital Leases, Incurred on or after the Issue Date and no later than 180 days after the date of purchase or completion of construction or improvement of property for the purpose of financing all or any part of the purchase price or costs of construction or improvement , provided that, the principal amount of any Debt incurred pursuant to this paragraph may not exceed at any time outstanding U.S.$125 million (or the equivalent in other currencies);
(ix) Other Short Term Debt of the Company or any Subsidiary, so long as before and after the Incurrence thereof the Company and its Subsidiaries remain in compliance with the last paragraph of Section 4.06(a);
(x) Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds or Debt in respect of netting services, automatic clearinghouse arrangements, overdraft protections and similar arrangements in connection with deposit accounts, in each case in the ordinary course of business;
(xi) Deeply Subordinated Debt of the Company;
(xii) Debt of the Company or any Subsidiary Incurred in respect of a Permitted Sale and Leaseback Transaction; and
(xiii) Debt of the Company or any Subsidiary Incurred on or after the Issue Date not otherwise permitted in an aggregate principal amount at any time outstanding not to exceed the greater of (i) no Default U.S.$250 million (or Event of Default shall have occurred and be continuing or result therefrom the equivalent in other currencies) and (ii) 20% of Consolidated Net Tangible Assets.
(c) Notwithstanding any other provision of this Section, for purposes of determining compliance with this Section, increases in Debt solely due to fluctuations in the aggregate exchange rates of currencies will not be deemed to exceed the maximum amount that the Company or a Subsidiary may Incur under this Section. For purposes of determining compliance with any U.S. Dollar-denominated restriction on the Incurrence of Debt, the U.S. Dollar-equivalent principal amount of all Debt denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred or, in the case of revolving credit Debt, first committed; provided that if such Debt is Incurred to refinance other Debt denominated in a foreign currency, and such Refinancing would cause the applicable U.S. Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such Refinancing, such U.S. Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such Refinancing Debt does not exceed the principal amount of such Debt being refinanced. The principal amount of any Debt Incurred to refinance other Debt, if Incurred in a different currency from the Debt being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Debt is denominated that is in effect on the date of such Refinancing.
(d) In the event that an item of Debt meets the criteria of more than one of the types of Debt described in this Section, the Company, in its sole discretion, will classify such item of Debt and will only be required to include the amount and type of such Debt in one of such clauses and the Company will be entitled to divide and classify an item of Debt in more than one of the types of Debt described in this Section, and may change the classification of an item of Debt (or any portion thereof) to any other type of Debt described in this Section at any time.
(e) For purposes of determining compliance with, and the outstanding principal amount of, any particular Debt Incurred pursuant to and in compliance with this Section:
(i) the outstanding principal amount of any item of Debt will be counted only once;
(ii) the amount of Debt issued at a price that is less than the principal amount thereof will be equal to the amount of the liability in respect thereof determined in accordance with IFRS; and
(iii) Guarantees of, or obligations in respect of letters of credit or similar instruments relating to, Debt that is otherwise included in the determination of a particular amount of Debt will not be included.
(f) The Company shall not exceed $1,000,000 at Incur any one time outstandingDebt that is subordinate in right of payment to other Debt of the Company unless such Debt is also subordinate in right of payment to the Notes on substantially identical terms. This shall not apply to distinctions between categories of Debt that exist by reason of any Liens or Guarantees.
(g) The accrual of interest, the accretion or amortization of original issue discount, the payment of regularly scheduled interest in the form of additional Debt of the same instrument or the payment of regularly scheduled dividends on Disqualified Stock in the form of additional Disqualified Stock with the same terms shall not be deemed to be an Incurrence of Debt for purposes of clauses (a) and (b) of this Section; provided that any such outstanding additional Debt or Disqualified Stock paid in respect of Debt Incurred pursuant to any provision of clause (b) shall be counted as Debt outstanding for purposes of any future Incurrence of Debt pursuant to clause (a).
Appears in 1 contract
Samples: Indenture (Telecom Argentina Sa)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal principal
(c) amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(cd) any Debt of Borrowers such Borrower or any Subsidiary of its Subsidiaries incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,0001,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(de) Subordinated Debt;
(f) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(eg) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;; and
(fh) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstanding.
Appears in 1 contract
Samples: Revolving Credit Agreement (Obagi Medical Products, Inc.)
Limitation on Debt. Create, incur, assume or suffer to exist (a) The Borrower shall not Incur any Debt, except:
(a) Indebtedness including Acquisition Debt, unless after giving effect to the Incurrence of any Credit Party to Agent such Debt and the Lenders under this Agreement and/or receipt and application of the other Loan Documents;proceeds therefrom, the Fixed Charge Ratio of the Borrower would be equal to or greater than 2.0 to 1.
(b) any Debt existing on Notwithstanding the Effective Date foregoing, the Borrower may Incur each and set forth in Schedule 8.1 attached hereto and any renewals or refinancing all of such Debt (provided that the following:
(i) Debt issued in exchange for, or the aggregate proceeds of which are used to Refinance, Debt of the Borrower in an amount (or, if such new Debt provides for an amount less than the principal amount thereof to be due and payable upon a declaration of such renewed or refinanced Debt shall acceleration thereof, with an original issue price) not to exceed the aggregate amount so exchanged or Refinanced (plus accrued interest and fees and expenses related to such exchange or Refinancing), the amount so exchanged or Refinanced being equal to the lesser of (x) the principal amount or involuntary liquidation preference of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on so exchanged or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, Refinanced and (iiiy) if the Debt being exchanged or Refinanced was issued with an original issue discount, the accreted value thereof (as determined in accordance with GAAP) at the time of such renewal Refinancing; provided that such Debt of the Borrower will rank pari passu with or refinancing no Default expressly subordinated in right of payment to the Obligations and the Average Life of the new Debt shall be equal to or Event greater than the Average Life of Default has occurred and is continuing the Debt to be exchanged or would result from the renewal or refinancing of such DebtRefinanced;
(cii) any Debt of Borrowers the Borrower to any of its Subsidiaries and to any Joint Ventures in which the Borrower is a direct or indirect partner, shareholder, member or other participant if such Debt of the Borrower is expressly subordinated in right of payment to the Obligations; provided that any transfer of such Debt by a Subsidiary incurred or a Joint Venture (other than to finance another Subsidiary or Joint Venture) will be deemed to be an Incurrence of Debt unless (x) such Debt has an Average Life which is greater than that of the acquisition of fixed or capital assets, whether pursuant Borrower Indenture Securities and which extends to a loan date later than the then Final Maturity Date or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (iiy) the aggregate amount of all such Debt which has an Average Life which is equal to or less than that of the Borrower Indenture Securities or which extends to, or to a date earlier than, the then Final Maturity Date does not exceed $3 million;
(iii) Debt in an aggregate principal amount not to exceed $10 million at any one time outstanding;
(iv) Debt in respect of Currency Protection Agreements or Interest Rate Protection Agreements; and
(v) Debt outstanding as of the date of this Agreement. For purposes of determining any particular amount of Debt under this subsection 7.2, Guarantees of, or obligations with respect to letters of credit supporting, Debt otherwise included in the determination of such particular amount shall not be included. For purposes of determining compliance with the provisions of this subsection 7.2, in the event that an item of Debt meets the criteria of more than one of the types of Debt described in the above clauses, the Borrower, in its sole discretion, shall classify such item of Debt and only be required to include the amount and type of such Debt in one of such clauses.
(c) Notwithstanding any other provision hereof, including without limitation any other provision of this subsection 7.2, the Borrower shall not Incur any Debt at any time unless no payment or prepayment in respect of principal of such Debt (including, without limitation, any Debt payments in respect of any sinking fund) shall be due or can become due (other than as a result of the type described in this clause (cacceleration thereof) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially prior to the same or better than those in effect at the time of the original incurrence of such Debt;then Final Maturity Date.
(d) Debt under any Hedging Transactions, provided In the event that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default Borrower shall have occurred and be continuing obtained any new loan or result therefrom other credit facility and (ii) any of the aggregate amount documentation for such new loan or other credit facility shall include any covenant or event of all such Debt default that shall not exceed $1,000,000 also be included hereunder (an "additional covenant or event of default") or that shall be more restrictive in any material manner than the correlative covenant or event of default hereunder (a "more restrictive covenant or event of default"), then the Borrower shall (1) promptly but not more than five days after the Borrower's entering into such documentation for such new loan or other credit facility, notify the Agent thereof and (2) at any one time outstandingthe request of the Agent (made either at its own direction or at the direction of the Required Lenders), enter into an amendment to this Agreement (in form and substance satisfactory to the Agent) to include such additional covenant or event of default or to make such correlative covenant or event of default as restrictive as such more restrictive covenant or event of default.
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party Borrower to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers Borrower or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed Five Million Dollars ($5,000,000) in any fiscal year of Borrower during the term hereof, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Subordinated Debt;
(e) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(ef) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(fg) Debt owing to a Person that is a Credit PartySubsidiary, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;; and
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed Five Million Dollars ($1,000,000 5,000,000) at any one time outstanding.
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of Notwithstanding anything contained in Section 4.09(b), prior to the Release, the Company will not Incur any Credit Party to Agent and Debt (including Acquired Debt), except for the Lenders under this Agreement and/or the other Loan Documents;Notes.
(b) From and after the Release, the Company and the Guarantors shall not, and shall not permit any Restricted Subsidiary to, Incur any Debt; provided, however, that the Company or any Guarantor may Incur Debt existing and the Company or any Guarantor may Incur Acquired Debt if the Company's Fixed Charge Coverage Ratio for the most recently ended four fiscal quarters for which financial statements have been filed with the Commission pursuant to Section 4.18 immediately preceding the date on which such Debt is Incurred would have been at least 2.00 to 1.00, determined on a pro forma basis (including pro forma application of the Effective Date net proceeds therefrom for such four-quarter period), as if the additional Debt had been Incurred at the beginning of such four-quarter period, with any letters of credit and set forth bankers' acceptances being deemed to have an aggregate principal amount of Debt equal to the maximum amount available thereunder and with any revolving credit facility being deemed to be utilized only to the extent of amounts outstanding thereunder.
(c) Notwithstanding the immediately preceding paragraph, any or all of the following Debt (collectively, "Permitted Debt") may be Incurred:
(1) Debt of the Company or any Guarantor under a Credit Facility; provided that the aggregate principal amount of all such Debt under Credit Facilities shall not exceed $950 million at any time outstanding less (i) the amount of any permanent mandatory repayments of principal of term loans made under a Credit Facility which was Incurred under this clause (1) and (ii) the amount of any permanent mandatory repayments of principal of revolving loans made under a Credit Facility which was Incurred under this clause (1) which are accompanied by a corresponding permanent commitment reduction, in Schedule 8.1 attached hereto each case which are made with Net Available Cash from Asset Sales as required as a result of a sale of assets;
(2) the Notes (excluding any Additional Notes) and related Guarantees and any renewals Notes and related Guarantees issued in exchange for the Notes and related Guarantees pursuant to the Registration Rights Agreement;
(3) Debt of the Company or refinancing any Guarantor in respect of such Debt Capital Lease Obligations and Purchase Money Debt; provided that:
(provided that (iA) the aggregate principal amount of such renewed or refinanced Debt shall secured thereby does not exceed the Fair Market Value (on the date of the Incurrence thereof) of the Property acquired, constructed or leased, and
(B) the aggregate principal amount of all Debt Incurred and then outstanding pursuant to this clause (3) (together with all Permitted Refinancing Debt Incurred and then outstanding in respect of Debt previously Incurred pursuant to this clause (3)) does not exceed $100 million;
(4) Debt (1) of the original Debt outstanding on Company owing to and held by Moore or any Restricted Subsidiary, (2) of a Restricted Subsidiaxx xxing to and held by Moore, the Effective Date Company or any other Restricted Subsidiary and (less 3) of Moore owing to and held by any principal payments and the amount Restricted Subsidiary; provided, xxxxxer, that any subsequent issue or transfer of Capital Stock or other event that results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of any commitment reductions made thereon on such Debt (except to Moore, the Company or prior a Restricted Subsidiary) shall be deemed, xx xxch case, to such renewal or refinancing), (ii) constitute the renewal or refinancing Incurrence of such Debt shall be on substantially by the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with issuer thereof not permitted by this Agreement, and clause (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt4);
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d5) Debt under any Hedging Transactions, provided that such transaction is Interest Rate Agreements entered into for risk by the Company, a Guarantor or a Restricted Subsidiary in the ordinary course of their financial management purposes and not for speculative purposes;
(e6) Debt arising from judgments under Currency Exchange Protection Agreements entered into by the Company, a Guarantor or decrees a Restricted Subsidiary in the ordinary course of their financial management and not deemed to be a Default or Event of Default under subsection (g) of Section 9.1for speculative purposes;
(f7) Debt owing to under Commodity Price Protection Agreements entered into by the Company, a Person that is Guarantor or a Credit Party, but only to Restricted Subsidiary in the extent permitted under Section 8.7 hereofordinary course of their financial management and not for speculative purposes;
(g8) Debt of the Company, a Guarantor or any Restricted Subsidiary in connection with (A) one or more letters of credit issued by any of them in the Comerica ordinary course of business with respect to trade payables relating to the purchase of materials by such Persons and (B) other letters of credit, surety, performance, appeal or similar bonds, banker's acceptances, completion guarantees or similar instruments issued in the ordinary course of business of the Company, a Guarantor or a Restricted Subsidiary, including letters of credit or similar instruments pursuant to self-insurance and workers' compensation obligations; provided that upon the drawing of such letters of credit or other instrument, such obligations are reimbursed within 30 days following such drawing; provided, further, that with respect to clauses (A) and (B) above, such Debt and is not in connection with the Subordinated Debtborrowing of money or the obtaining of advances or credit;
(h9) Debt of the Company, a Guarantor or any Restricted Subsidiary arising under from the Surety Agreementshonoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds; provided that such Debt remains outstanding for five Business Days or less;
(10) Debt of the Company, a Guarantor or any Restricted Subsidiary arising from agreements for indemnification and purchase price adjustment obligations and earn-outs or other similar obligations, in each case, Incurred or assumed in connection with the acquisition or disposition of any assets, including Capital Stock and including by way of merger or consolidation; provided that the Borrowers maximum assumable liability in respect of all such obligations shall promptly terminate at no time exceed the Liberty Mutual Indemnity Agreement and gross proceeds actually received by the Company, a Guarantor or any other Bond Documents related thereto following Restricted Subsidiary, including the completion Fair Market Value of the construction projects set forth on Schedule 8.1(i)non-cash proceeds;
(i11) additional unsecured Debt not Incurred by a Securitization Entity in connection with a Qualified Securitization Transaction; provided, however, that in the event such Securitization Entity ceases to qualify as a Securitization Entity, such Debt will be deemed, in each case, to be Incurred at such time;
(12) Debt of the Company or a Guarantor consisting of a Guarantee of or a Lien securing, Debt of the Company or a Guarantor; provided that such Debt constitutes Debt that is permitted to be Incurred pursuant to this Section 4.09, but subject to compliance with the other provisions described under Article Four;
(13) Debt in respect of netting services, overdraft protection and otherwise in connection with deposit accounts; provided that such Debt remains outstanding for five Business Days or less;
(14) Debt of the Company, a Guarantor or any Restricted Subsidiary (other than Wallace or its Subsidiaries) that was outstanding on the Issue Dxxx xxx otherwise described in clauses (1) through (13) above, ; provided that both from and after the Release, this clause (14) shall not include Debt under the Existing Moore Credit Agreement;
(15) Guarantees in the ordinary cxxxxx of business of the obligations of suppliers, customers, franchisers and licensees;
(16) Permitted Refinancing Debt; and
(17) Debt of the Company, a Guarantor or any Restricted Subsidiary or the issuance of Disqualified Stock in a principal amount or liquidation value, as applicable, outstanding at any one time not to exceed $200 million in the aggregate for all such Debt and Disqualified Stock (which Debt may, but need not, be Incurred, in whole or in part, under a Credit Facility). For the purposes of determining compliance with this Section 4.09, in the event that an item of Debt meets the criteria of more than one of the types of Debt permitted by this covenant or is entitled to be Incurred pursuant to Section 4.09(b), the Company in its sole discretion shall be permitted to classify on the date of its Incurrence, or later reclassify, all or a portion of such item of Debt in any manner that complies with this Section 4.09; provided that all outstanding Debt under the Credit Agreement at the time of and immediately after giving effect the Release shall be deemed to the incurrence thereof have been Incurred pursuant to clause (ic)(i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstandingthis Section 4.09.
Appears in 1 contract
Samples: Indenture (Moore Corporation LTD)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or and the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers a Borrower or any Subsidiary Subsidiary, excluding Debt otherwise permitted under this Section 7.1, incurred to finance the acquisition of fixed or capital assets, assets (whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(iLease);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) and the retirement of any Indebtedness which is concurrently being retired, no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) provided further that the aggregate outstanding amount of all Debt incurred pursuant to this Section 7.1(b) shall at no time exceed Five Hundred Thousand Dollars ($500,000), exclusive of Indebtedness of such type specifically identified on Schedule 7.1(j) hereto;
(c) Guarantee Obligations permitted under Section 7.3;
(d) current unsecured trade, utility or nonextraordinary accounts payable (including without limitation, operating leases and short term Debt owed to vendors) arising in the ordinary course of a Borrower’s or its Subsidiaries’ businesses;
(e) Debt in respect of taxes, assessments or governmental charges to the extent that payment thereof shall not exceed $1,000,000 at the time be required to be made in accordance with Section 7.3;
(f) Intercompany Loans;
(g) Debt secured by Permitted Liens;
(h) Debt of a Subsidiary existing at the time such subsidiary is acquired by a Borrower or any one time outstandingSubsidiary in an acquisition permitted under Section 7.4 hereof;
(i) Other liabilities which do not constitute Funded Debt and which are incurred and paid by a Borrower and its Subsidiaries in the ordinary course of their businesses;
(j) Debt listed on Schedule 7.1(j) hereof.
Appears in 1 contract
Limitation on Debt. CreateThe Borrower shall not, and shall not permit any Subsidiary of the Borrower to, incur, assume assume, create or suffer to exist any Debt, exceptexcept for:
(a) Indebtedness in the case of any Credit Party to Agent and the Lenders Borrower:
(i) Debt under this Agreement and/or the other Loan Financing Documents;
(bii) any Debt existing on the Amendment and Restatement Effective Date Date;
(iii) Debt representing a refinancing, replacement or refunding of Debt permitted by Section 5.07(a)(i), (ii), (iii), (vii) and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (ix); provided that that:
(iA) (x) the aggregate principal amount of such renewed Debt outstanding or refinanced Debt shall available will not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) available at the time of such renewal refinancing, replacement or refinancing no Default refunding (plus fees and expenses, including any premium and defeasance costs relating to such refinancing, replacement or Event of Default has occurred and is continuing or would result from refunding), (y) the renewal or refinancing final maturity of such DebtDebt is later than the Revolving Credit Loan Termination Date (other than Debt that can be settled in the Borrower’s Capital Stock (other than Redeemable Stock); provided that such Debt may only be settled in cash prior to the Revolving Credit Loan Termination Date up to an aggregate principal amount not to exceed $400,000,000 and not before July 29, 2006; provided further that the Debt being refinanced, replaced or refunded has a final maturity date on or prior to the Revolving Credit Loan Termination Date) (z) (1) such Debt shall not contain any Payment Restriction more restrictive than the Payment Restrictions contained in the Debt being refinanced, replaced or refunded or (2) in the opinion of the Borrower, such Payment Restrictions are consistent with customary market terms for a financing of its nature and do not adversely affect the ability of the Borrower to meet its payment Obligations under the Financing Documents; and
(B) no obligor shall be liable for any such Debt except to the extent that it was liable for the Debt so refinanced, replaced or refunded, unless such liability in respect of such Debt would otherwise be permitted by Section 5.07(b);
(civ) Debt owing by the Borrower to a Consolidated Subsidiary of the Borrower so long as such Debt is subordinated on terms reasonably satisfactory to the Agent to the Debt of the Borrower under the Financing Documents;
(v) any Lien permitted by Section 5.10 that constitutes Debt not otherwise permitted by this Section;
(vi) Letters of Borrowers or any Subsidiary incurred credit, surety bonds, Guarantees and performance bonds supporting obligations of Subsidiaries so long as, after giving effect to finance such letters of credit, surety bonds, Guarantees and performance bonds (and the acquisition of fixed or capital assetsInvestments represented thereby), whether pursuant to a loan or a Capitalized Lease provided that both at the time of Borrower would be in compliance with Section 5.16;
(vii) other Debt so long as (x) immediately before and immediately after giving effect to the incurrence and application of the proceeds thereof (i) no Default or Event of Default shall have occurred and be continuing, and (iiy) the aggregate amount of all if such Debt at any one time outstanding (includingis secured by a Lien on the Creditor Group Collateral on a first-lien basis, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings final scheduled maturity of such Debt shall in no event be on terms substantially or prior to the same Revolving Credit Loan Termination Date and (z) if such Debt is secured by a Lien on the Creditor Group Collateral on a first-lien basis, such Debt shall not have any scheduled amortization on or better than those prior to the Revolving Credit Loan Termination Date in effect at the time an aggregate amount in excess of 10% of the original incurrence initial amount of such Debt;
(dviii) Debt under incurred as a bridge financing for a proposed sale, transfer or other disposition of assets pursuant to Section 5.18(iv) with respect to assets acquired after June 23, 2005; provided that (w) the only direct or contingent obligor in respect of such Debt is the holder of the assets that are the subject of such sale, transfer or other disposition, (x) the interest rate applicable to such Debt does not exceed the then applicable market interest rate, (y) such Debt is repaid with the proceeds of such sale, transfer or other disposition upon consummation thereof and (z) such Debt was incurred in connection with the acquisition by the Borrower of the assets that are the subject of such sale, transfer or other disposition;
(ix) Debt incurred to refinance, replace or refund any Hedging Transactionsof the obligations arising in respect of the Existing Trust Preferred Securities, provided that (x) the only direct or contingent obligor in respect of such transaction Debt is entered into for risk management purposes the Borrower and not for speculative purposes;(y) the final scheduled maturity of such Debt shall be later than the Revolving Credit Loan Termination Date; and
(ex) Debt arising from judgments or decrees in an aggregate principal amount not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Partyexceed $500,000,000 at any one time outstanding, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt so long as immediately before and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence and application of the proceeds thereof (i) no Default or Event of Default shall have occurred and be continuing continuing; and
(b) in the case of the Borrower’s Subsidiaries:
(i) Guarantees of Debt of the Borrower under the Financing Documents, the Senior Secured Exchange Notes and Debt permitted by clause (a)(iii) or result therefrom (a)(vii) above, the proceeds of which are applied to permanently reduce Total Bank Exposure or prepay the Senior Secured Exchange Notes (it being understood that if, after the Effective Date, any Subsidiary Guarantees the Debt of the Borrower under the Financing Documents, such Subsidiary may also Guarantee the Senior Secured Exchange Notes and the Debt permitted by clause (a)(iii) or (a)(vii) above, the proceeds of which are applied to permanently reduce Total Bank Exposure or prepay the Senior Secured Exchange Notes);
(ii) Debt incurred by a Subsidiary:
(1) to finance the aggregate amount acquisition, development, construction, operation, maintenance (including modifications and upgrades to comply with applicable laws and regulations) or working capital requirements (including letters of all credit or guarantees to fund debt service reserve accounts or similar accounts or for the benefit of power purchase agreements or commodity hedging counterparties) of a Power Supply Business or other business owned, operated or managed (including on a joint basis with others), directly or indirectly, by the Borrower (an “AES Business”) or (2) to finance the acquisition of “greenfields” and the construction, operation, maintenance or working capital requirements (including modifications and upgrades to comply with applicable laws and regulations) or working capital requirements (including letters of credit or guarantees to fund debt service reserve accounts or similar accounts or for the benefit of power purchase agreements or commodity hedging counterparties) necessary to develop and construct such Debt shall not exceed $1,000,000 at any one time outstanding.“greenfields” and to operate them as an AES Business or (3) that constitutes Acquired Debt; and
Appears in 1 contract
Limitation on Debt. Create(a) The Borrower shall not, incurand shall not permit any Restricted Subsidiary to, assume incur or suffer be liable with respect to exist (i) any Debt of a type described in clause (i), (ii), (iii) or (iv) of the definition of "Debt" in Section 1.01 or (ii) any Guarantee of any such Debt described in clause (i) above, except:
(ai) Indebtedness Debt outstanding under the Financing Documents; 102
(ii) Debt under or in respect of the Senior Secured Credit Agreement in an aggregate principal amount not to exceed $300,000,000 less any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documentsamount of such Debt repaid;
(biii) Debt outstanding on the Closing Date, including the Government Settlement and any other obligations arising under the Plan of Reorganization;
(iv) Capital Lease Obligations; provided that the aggregate outstanding principal amount of Debt permitted by this clause (iv) and by clause (v) shall not at any time exceed $25,000,000;
(v) Debt incurred or assumed after the Closing Date for the purpose of financing all or any part of the cost of acquiring or constructing an asset of the Borrower or a Restricted Subsidiary; provided that (A) such Debt is secured by a Lien on such asset that is permitted by Section 7.02(g) and (B) the aggregate outstanding principal amount of all Debt permitted by clause (iv) and this clause (v) shall not at any time exceed $25,000,000;
(vi) Debt of any Person that becomes a Restricted Subsidiary after the Closing Date in connection with an Acquisition; provided that such Debt was outstanding before such Person became a Restricted Subsidiary and was not incurred in contemplation thereof;
(vii) Debt incurred after the Closing Date and Guarantees of Debt entered into after the Closing Date; provided that (A) the Debt so incurred or Guaranteed is incurred in exchange for or to repay, prepay, repurchase, redeem, defease, retire or refinance ("refinance") any outstanding Debt existing on of the Effective Date Borrower or any Restricted Subsidiary otherwise permitted by this Section and (B) the principal amount of the Debt so incurred or Guaranteed shall not exceed the unpaid principal amount of the Debt so exchanged or refinanced; provided further that a refinancing of the Senior Secured Credit Agreement shall be permitted only if, in addition to the limitations set forth in Schedule 8.1 attached hereto and any renewals the foregoing proviso, (w) no principal amount of the Debt incurred or to be incurred pursuant to such refinancing (the "Refinancing Debt") shall be required to be repaid before the stated maturity of the Debt under the Senior Secured Credit Agreement immediately prior to such refinancing (other than in connection with a mandatory prepayment of such Debt on terms similar to those under the Senior Secured Credit Agreement immediately prior to such refinancing), (provided that (ix) the aggregate principal amount of such renewed or refinanced interest payable on, and the fees payable in connection with, the Refinancing Debt shall not exceed the aggregate principal amount of interest and fees payable pursuant to the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or Senior Secured Credit Agreement immediately prior to such renewal or 103 refinancing), (iiy) no restriction is imposed on the Borrower or any Guarantor in connection with the Refinancing Debt that is more restrictive in any material respect than the provisions in the Senior Secured Credit Agreement and the related security agreements and guarantees immediately prior to such refinancing and (z) the renewal or refinancing of such Refinancing Debt shall be is subordinated to this Agreement on substantially terms that are no less advantageous the same or better Lenders than the terms as in effect with respect on which the Senior Secured Credit Agreement is subordinated to this Agreement immediately prior to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and refinancing;
(iiiviii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Permitted Intercompany Debt;
(cix) any Debt consisting of Borrowers (A) trade obligations or (B) accrued current liabilities for services rendered to the Borrower or any Subsidiary incurred to finance Restricted Subsidiary, in each case, arising in the acquisition ordinary course of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at business after the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such DebtClosing Date;
(dx) Debt under Interest Rate Agreements (including Designated Interest Rate Agreements) of the Borrower or any Hedging Transactions, provided that such transaction is Restricted Subsidiary relating to Debt permitted to be incurred and outstanding under this Section and entered into in the ordinary course of business for risk management purposes the purpose of limiting interest rate risks and not for speculative purposes;speculation; and
(exi) Debt owed in respect of any overdrafts and related liabilities arising from judgments treasury, depository and cash management services or decrees not deemed to be a Default or Event in connection with any automated clearing house transfers of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstandingfunds.
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness The Parent Guarantor shall not, and shall not permit any Restricted Subsidiary to, create, issue, Incur, assume, guarantee or in any manner become directly or indirectly liable with respect to or otherwise become responsible for, contingently or otherwise, the payment of any Credit Party (individually and collectively, to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) “Incur” or, as appropriate, an “Incurrence”), any Debt existing on (including any Acquired Debt); provided that the Effective Date and set forth in Schedule 8.1 attached hereto Parent Guarantor, each Issuer and any renewals or refinancing Restricted Subsidiary shall be permitted to Incur Debt (including Acquired Debt) if in each case (i) after giving effect to the Incurrence of such Debt (provided that (i) and the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount application of the original Debt outstanding proceeds thereof, on the Effective Date (less any principal payments a pro forma basis, no Default or Event of Default would occur or be continuing and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred Incurrence and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof Incurrence of such Debt and the application of the proceeds thereof, on a pro forma basis, the Consolidated Fixed Charge Coverage Ratio for the four full fiscal quarters for which financial statements are available immediately preceding the Incurrence of such Debt, taken as one period, would be greater than 2.0 to 1.0.
(b) This covenant shall not, however, prohibit the following (collectively, “Permitted Debt”):
(i) no Default the Notes and the New Secured Notes issued on the Issue Date;
(ii) the Incurrence by the Parent Guarantor or Event any Restricted Subsidiary of Default shall have occurred and be continuing, Debt under Credit Facilities in an aggregate principal amount not to exceed the greater of (i) €350,000,000 and (ii) an amount equal to (I) 85% of Total Receivables plus 60% of Total Inventories less (II) €250,000,000;
(iii) any Existing Debt of the Parent Guarantor or any Restricted Subsidiary (other than Debt described in clauses (i) and (ii) of this paragraph (b)) and any Debt of the Acquired Business existing on the date of completion of the Acquisition;
(iv) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of intercompany Debt between the Parent Guarantor and any Restricted Subsidiary or between or among Restricted Subsidiaries; provided that:
(A) if an Issuer or a Guarantor is the obligor on any such Debt, unless required by a Credit Facility and only to the extent legally permitted, such Debt must be unsecured (except in respect of the intercompany current liabilities Incurred in the ordinary course of business in connection with cash management, cash pooling, tax and accounting operations of the Parent Guarantor and its Restricted Subsidiaries); and
(B) (x) any disposition, pledge or transfer of any such Debt to a Person (other than a disposition, pledge or transfer to the Parent Guarantor or a Restricted Subsidiary) and (y) any transaction pursuant to which any Restricted Subsidiary that has Debt owing by the Parent Guarantor or another Restricted Subsidiary ceases to be a Restricted Subsidiary, will, in each case, be deemed to be an Incurrence of such Debt not permitted by this clause (iv);
(v) guarantees of the Parent Guarantor or any Restricted Subsidiary of Debt of the Parent Guarantor or any Restricted Subsidiary to the extent that the guaranteed Debt was permitted to be incurred by another provision of this Section 4.06 that are made in accordance with the provisions of Section 4.15;
(vi) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt represented by Capitalized Lease Obligations, mortgage financings, purchase money obligations or other Debt Incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property or assets, in each case, Incurred for the purpose of financing or refinancing all or any part of the purchase price, lease expense or cost of construction or improvement of property, plant, equipment or other assets used in the Parent Guarantor’s or any Restricted Subsidiary’s business (including any reasonable related fees or expenses Incurred in connection with such acquisition or development); provided that the principal amount of such Debt so Incurred when aggregated with other Debt previously Incurred in reliance on this clause (vi) and still outstanding shall not in the aggregate exceed the greater of €150,000,000 and 2.0% of Total Assets; and provided, further, that the total principal amount of all any Debt Incurred in connection with an acquisition or development permitted under this clause (vi) did not in each case at the time of Incurrence exceed (A) the Fair Market Value of the acquired or constructed asset or improvement so financed or (B) in the case of an uncompleted constructed asset, the amount of the asset to be constructed, as determined on the date the contract for construction of such asset was entered into by the Parent Guarantor or the relevant Restricted Subsidiary (including, in each case, any reasonable related fees and expenses Incurred in connection with such acquisition, construction or development);
(vii) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt at any one time outstanding (arising from agreements providing for guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock (other than guarantees or similar credit support given by the Parent Guarantor or any Restricted Subsidiary of Debt Incurred by any Person acquiring all or any portion of such assets for the type described purpose of financing such acquisition); provided that the maximum aggregate liability in respect of all such Debt permitted pursuant to this clause (c) which is set forth on Schedule 8.1 hereofvii) shall not at no time exceed $5,000,000the net proceeds, and any renewals or refinancings including non-cash proceeds (the Fair Market Value of such Debt on terms substantially the same or better than those in effect non-cash proceeds being measured at the time of received and without giving effect to any subsequent changes in value) actually received from the original incurrence sale of such Debtassets;
(dviii) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt under any Commodity Hedging Transactions, provided that such transaction is Agreements entered into for risk management purposes in the ordinary course of business and not for speculative purposes;
(eix) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt arising from judgments or decrees under Currency Agreements entered into in the ordinary course of business and not deemed to be a Default or Event of Default under subsection (g) of Section 9.1for speculative purposes;
(fx) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt owing to a Person that is a Credit Party, but only to under Interest Rate Agreements entered into in the extent permitted under Section 8.7 hereofordinary course of business and not for speculative purposes;
(gxi) the Comerica Incurrence of Debt by the Parent Guarantor or any Restricted Subsidiary of Debt in respect of workers’ compensation and claims arising under similar legislation, or pursuant to self-insurance obligations and not in connection with the Subordinated Debtborrowing of money or the obtaining of advances or credit;
(hxii) the Incurrence of Debt by the Parent Guarantor or any Restricted Subsidiary arising under from (A) the Surety Agreementshonoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Debt is extinguished within five Business Days of Incurrence, (B) bankers’ acceptances, performance, surety, judgment, completion, payment, appeal or similar bonds, instruments or obligations, (C) completion guarantees, advance payment, customs, VAT or other tax guarantees or similar instruments provided or letters of credit obtained by the Borrowers shall promptly terminate Parent Guarantor or any Restricted Subsidiary in the Liberty Mutual Indemnity Agreement ordinary course of business, and any other Bond Documents related thereto following (D) the completion financing of insurance premiums in the construction projects set forth on Schedule 8.1(i)ordinary course of business;
(xiii) any Debt of the Parent Guarantor or any Restricted Subsidiary Incurred pursuant to any Permitted Receivables Financing;
(xiv) the Incurrence by a Person of Permitted Refinancing Debt in exchange for or the net proceeds of which are used to refund, replace or refinance Debt Incurred by it pursuant to, or described in, paragraphs (a), (b)(i) and (b)(iii), this paragraph (b)(xiv) and paragraphs (b)(xviii), (b)(xix) and (b)(xx) of this Section 4.06, as the case may be;
(xv) guarantees by the Parent Guarantor or a Restricted Subsidiary of Debt Incurred by Permitted Joint Ventures in an aggregate principal amount at any one time outstanding not to exceed an amount equal to €75,000,000;
(xvi) cash management obligations and Debt in respect of netting services, pooling arrangements or similar arrangements in connection with cash management in the ordinary course of business consistent with past practice;
(xvii) (i) additional unsecured take-or-pay obligations in the ordinary course of business, (ii) customer deposits and advance payments in the ordinary course of business received from customers for goods or services purchased in the ordinary course of business and (iii) manufacturer, vendor financing, customer and supply arrangements in the ordinary course of business;
(xviii) the Incurrence of Debt by the Parent Guarantor or any Restricted Subsidiary (other than and in addition to Debt permitted under clauses (i) through (xvii) above and clauses (xix) and (xx) below) in an aggregate principal amount at any one time outstanding not to exceed, together with any Permitted Refinancing Debt in respect thereof, the greater of €265,000,000 and 3.5% of Total Assets;
(xix) Debt of any Person (x) Incurred and outstanding on the date on which such Person becomes a Restricted Subsidiary of the Parent Guarantor or another Restricted Subsidiary of the Parent Guarantor or is merged, consolidated, amalgamated or otherwise described abovecombined with (including pursuant to any acquisition of assets and assumption of related liabilities) the Parent Guarantor or any Restricted Subsidiary or (y) Incurred to provide all or any portion of the funds utilized to consummate the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Parent Guarantor or a Restricted Subsidiary; provided, provided however, with respect to each of clause (xix)(x) and (xix)(y), that both at the time of and immediately such acquisition or other transaction (1) the Parent Guarantor would have been able to Incur €1.00 of additional Indebtedness pursuant to Section 4.06(a) after giving effect to the incurrence thereof Incurrence of such Indebtedness pursuant to this clause (ixix) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii2) the aggregate amount Fixed Charge Coverage Ratio of all the Parent Guarantor and its Restricted Subsidiaries would not be less than it was immediately prior to giving pro forma effect to such Debt shall not exceed $1,000,000 at any one time outstanding.acquisition or other transaction; and
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness The Company will not, and will not permit any of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) its Restricted Subsidiaries to, Incur any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancingincluding Acquired Debt), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and unless immediately after giving effect to the incurrence thereof Incurrence of such Debt and the receipt and contemporaneous application of the proceeds therefrom, (i) no Default or Event of Default shall have occurred and be continuing, and (iia) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt Interest Coverage Ratio of the type described in this clause Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (c) which is set forth the "Specified Period"), determined on Schedule 8.1 hereof) shall not exceed $5,000,000a pro forma basis as if any such Debt, and any renewals or refinancings other Debt Incurred since the beginning of such Debt on terms substantially the same or better than those in effect Specified Period, had been Incurred and the proceeds thereof had been applied at the time beginning of the original incurrence of such Debt;
(d) Debt under any Hedging TransactionsSpecified Period, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following Debt repaid since the completion beginning of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both Specified Period had been repaid at the time beginning of the Specified Period, would be greater than 2.0:1 if the Debt is Incurred prior to February 1, 1999 and immediately after giving effect to 2.25:1 if the incurrence thereof Debt is Incurred thereafter and (ib) no Default or Event of Default shall have occurred and be continuing at the time or result as a consequence of the Incurrence of such Debt.
(b) If, during the Specified Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on the first day of the Specified Period.
(c) If the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Period) to both the incurrence or assumption of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion in EBITDA of the EBITDA of the acquired Person, business, Property or assets or redesignated Subsidiary.
(iid) Notwithstanding paragraph (a) above, the aggregate amount Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) The Incurrence of all such Debt solely to develop a Stopping Center shall not exceed $1,000,000 at any one time outstandingbe determined in accordance with the definition of "Incur" set forth in Section 1.1.
Appears in 1 contract
Limitation on Debt. CreateThe Borrower shall not create, incur, assume or suffer to exist any DebtIndebtedness other than the following Indebtedness (collectively, except:"Permitted Indebtedness"):
(a) Indebtedness of any Credit Party to Agent and Senior Loans, including Senior Facility Loans incurred under Replacement Loan Agreements in the Lenders under this Agreement and/or the other Loan Documentscircumstances contemplated in Section 3.10(b);
(b) any Debt existing on Subordinated Loans provided and held by the Effective Date Parent Companies or their respective Affiliates that are unsecured and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) pledged at all times to secure the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such DebtSenior Loans;
(c) Working Capital Debt in an amount not to exceed, at any time, U.S.$75,000,000 or its Equivalent;
(d) reimbursement obligations with respect to unsecured import letters of credit in favor of sellers of equipment necessary for the Business or constituting Sustaining Capital Costs or Incremental Capital Expenditures which by their terms expire not more than 18 months following the issuance thereof;
(e) trade accounts payable arising in the ordinary course of business which are payable less than 181 days after the date the respective goods are delivered or the respective services are rendered;
(f) Replacement Debt in connection with a prepayment in full of Borrowers all outstanding Senior Facility Loans;
(g) Permitted Hedges; and
(h) financial assurances, including surety bxxxx xr reimbursement obligations in respect of letters of credit, which are required by the Closure Law and which do not exceed in the aggregate U.S.$50,000,000 or its Equivalent. Nothing in this Section 7.16 or elsewhere in this Agreement or any Subsidiary incurred other Financing Document shall be deemed to finance prohibit the acquisition exercise by the Borrower of fixed or capital assets, whether pursuant any right under any Sales Agreement to a loan or a Capitalized Lease provided that both at elect to receive payment for the products sold thereunder in advance of the time at which payment is otherwise required to be made thereunder, which advance payment may require payment (or deduction) of and immediately after giving effect to the incurrence thereof a finance charge, so long as (i) no Default or Event products sold under such arrangements are sold not more than 3 months in advance of Default shall have occurred shipment and be continuing, represent not more than 30% of Borrower's annual production of such products and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings proceeds of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into arrangements are used for risk management purposes and not for speculative working capital purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstanding.
Appears in 1 contract
Limitation on Debt. Create(1) The Issuer shall not, and shall not permit any Restricted Subsidiary to, create, issue, incur, assume assume, guarantee or suffer in any manner become directly or indirectly liable with respect to, or otherwise become responsible for, contingently or otherwise, the payment of (individually and collectively, to exist "incur" or, as appropriate, an "incurrence"), any Debt (including any Acquired Debt), exceptunless no Default or Event of Default would occur or be continuing after giving effect on a pro forma basis to such incurrence of Debt and:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from incurrence the renewal or refinancing Consolidated Fixed Charge Coverage Ratio for the four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Debt, taken as one period, would be greater than 2.5 to 1.0 if such incurrence is on or prior to July 3, 2003 and 3.0 to 1.0 if such incurrence is after such date; and,
(b) with respect to any Restricted Subsidiary, such Debt (other than Acquired Debt or Debt of a Qualified Finance Company Subsidiary) is not Public Debt.
(2) This covenant shall not, however, prohibit the following (collectively, "Permitted Debt"):
(a) the incurrence by the Issuer or any Restricted Subsidiary of Debt under Credit Facilities in an aggregate principal amount at any one time outstanding not to exceed $525 million, minus (i) the amount of any permanent repayments or prepayment of such Debt with the proceeds of Asset Sales made in accordance with Section 4.11 (Limitation on Sales of Certain Assets) (but only to the extent of any corresponding commitment reduction if such Debt is revolving credit borrowings), and (ii) the amount of any scheduled permanent principal repayment provided for by the terms of the Revolving Credit Facilities from time to time (unless refinanced on the date of such prepayment), to be deducted on the date of each such repayment;
(b) the incurrence by the Issuer of Debt pursuant to the Notes (other than Additional Notes) and the incurrence of Debt by the Subsidiary Guarantors pursuant to the Guarantees;
(c) any Debt of Borrowers the Issuer or any Subsidiary incurred to finance of its Restricted Subsidiaries (other than Debt described in another clause of this paragraph) outstanding on the acquisition date of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to this Indenture;
(d) the incurrence thereof by the Issuer or any Restricted Subsidiary of intercompany Debt between the Issuer or any Restricted Subsidiary or between or among Restricted Subsidiaries; provided that
(i) no Default if the Issuer is the obligor on any such Debt, unless required by a Credit Facility, it is (x) unsecured and (y) is subordinated in right of payment from and after such time as the Notes shall become due and payable (whether upon Stated Maturity, acceleration or Event otherwise) to the payment and performance of Default shall have occurred and be continuingthe Issuer's obligations under the Notes, and unless such Debt is owed to a Qualified Finance Company Subsidiary, in which case it may rank equally in right of payment with the performance of the Issuer's obligations under the Notes; and
(ii) (x) any disposition, pledge or transfer of any such Debt to a Person (other than a disposition, pledge or transfer to the Issuer or a Restricted Subsidiary) and (y) any transaction pursuant to which any Restricted Subsidiary that has Debt owing to the Issuer or another Wholly Owned Restricted Subsidiary ceases to be a Restricted Subsidiary, shall, in each case, be deemed to be an incurrence of such Debt not permitted by this clause (d); or
(iii) if the Issuer is the obligor on any such Debt, unless otherwise required by a Credit Facility, the aggregate principal amount of all such intercompany Debt outstanding at any one time outstanding does not exceed $25 million.
(e) guarantees of the Issuer's Debt by any Restricted Subsidiary that are permitted by and made in accordance with the provisions of Section 4.20 (Limitation on Guarantees of Debt by Restricted Subsidiaries) below;
(f) the incurrence by the Issuer or any Restricted Subsidiary of Debt arising from agreements providing for guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock, other than guarantees or similar credit support given by the Issuer or any Restricted Subsidiary of Debt incurred by any Person acquiring all or any portion of such assets for the type described purpose of financing such acquisition, provided that the maximum aggregate liability in respect of all such Debt permitted pursuant to this clause shall at no time exceed the net proceeds, including non-cash proceeds (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings the Fair Market Value of such Debt on terms substantially the same or better than those in effect non-cash proceeds being measured at the time of received and without giving effect to any subsequent changes in value) actually received from the original incurrence sale of such Debtassets;
(dg) the incurrence by the Issuer or any Restricted Subsidiary of Debt under Currency Agreements, directly related to transactions entered into in the ordinary course of business and not for speculative purposes; provided that such Currency Agreements do not increase the obligations outstanding of the Issuer and its Restricted Subsidiaries on a consolidated basis, other than the obligations outstanding as a result of fluctuations in foreign currency exchange rates or by reason of any Hedging Transactionsreasonable fees, indemnities and compensation payable thereunder;
(h) the incurrence by the Issuer or any Restricted Subsidiary of Debt under one or a related series of Interest Rate Agreements entered into for the purpose of limiting interest rate risk, provided that such transaction Interest Rate Agreement is or Interest Rate Agreements are not entered into for risk management purposes and not for speculative purposes;
(ei) the incurrence by the Issuer or any Restricted Subsidiary of Debt arising from judgments under Fuel Hedging Agreements entered into in the ordinary course of business, for the purpose of limiting the impact of commodity price fluctuations, provided that such Fuel Hedging Agreements do not increase the amount of Debt or decrees not deemed to be other obligations outstanding of the Issuer and its Restricted Subsidiaries on a Default consolidated basis, other than as a result of fluctuations in commodity prices or Event by reason of Default under subsection (g) of Section 9.1any reasonable fees, indemnities and compensation payable thereunder;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(gj) the Comerica incurrence by the Issuer or any Restricted Subsidiary of Debt and represented by Capitalised Lease Obligations, mortgage financings or purchase money obligations, or other Debt incurred or assumed in connection with the Subordinated Debt;
acquisition or development of real or personal, movable or immovable, property or assets in each case incurred for the purpose of financing or refinancing all or any part of the purchase price, lease expense or cost of construction or improvement of property used in the Issuer's or any Restricted Subsidiary's business (h) Debt arising under the Surety Agreementsincluding any reasonable related fees or expenses incurred in connection with such acquisition or development), provided that the Borrowers principal amount of such Debt so incurred when aggregated with other Debt previously incurred in reliance on this clause (j) and still outstanding shall promptly terminate not in the Liberty Mutual Indemnity Agreement aggregate exceed 5% of Total Tangible Assets as determined at the date of such incurrence; and provided further that the total principal amount of any other Bond Documents related thereto following Debt incurred in connection with an acquisition or development permitted under this clause (j) did not in each case at the completion time of incurrence exceed (i) the Fair Market Value of the acquired or constructed asset or improvement so financed or (ii) in the case of an uncompleted constructed asset, the cost of the asset to be constructed, as determined on the date the contract for construction projects set forth on Schedule 8.1(iof such asset was entered into by the Issuer or the relevant Restricted Subsidiary (including, in each case, any reasonable related fees and expenses incurred in connection with such acquisition, construction or development);
(ik) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof of Debt by the Issuer or any Restricted Subsidiary in respect of workers' compensation and claims arising under similar legislation, or pursuant to self-insurance obligations and not in connection with the borrowing of money or the obtaining of advances or credit;
(l) the incurrence of Debt by the Issuer or any Restricted Subsidiary arising from: (i) no Default the honouring by a bank or Event other financial institution of Default shall have occurred and be continuing a check, draft or result therefrom and similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Debt is extinguished within 15 business days of incurrence, (ii) bankers' acceptances, performance, surety, judgment, appeal or similar bonds, instruments or obligations; and (iii) completion guarantees provided or letters of credit obtained by the. Issuer or any Restricted Subsidiary in the ordinary course of business;
(m) the incurrence of Debt pursuant to Permitted Receivables Financings in an aggregate principal amount not to exceed 25% of Total Receivables as determined at the date of such incurrence;
(n) the incurrence by the Issuer or any Restricted Subsidiary of Debt owed to employees in connection with loan stock issued under employee stock purchase plans, so long as the aggregate principal amount of all such Debt shall not exceed $1,000,000 outstanding at any one time outstandingdoes not exceed $2 million;
(o) the incurrence by the Issuer or any Restricted Subsidiary of Debt in relation to: (i) regular maintenance required to maintain the classification of any of the ships owned or chartered on bareboat terms by the Issuer or any Restricted Subsidiary; (ii) scheduled dry-docking of any of the ships owned by the Issuer or any Restricted Subsidiary for normal maintenance purposes; and (iii) any expenditures that swan or may be reasonably expected to be recoverable from insurance on such ships;
(p) the incurrence by the Issuer or any Restricted Subsidiary of Debt in relation to the provision of bonds, guarantees, letters of credit or similar obligations required by the United States Federal Maritime Commission or other governmental or regulatory agencies in connection with ships owned or business conducted by the Issuer or any Restricted Subsidiary;
(q) the incurrence by the Issuer or any Restricted Subsidiary of Debt in relation to the provision in the ordinary course of business of bonds, guarantees, letters of credit or similar obligations required to remove Liens asserted by third parties pursuant to ship arrests;
(r) the incurrence by the Issuer or any Restricted Subsidiary of Debt to finance the replacement of a ship upon a total loss, destruction, condemnation, confiscation, requisition, seizure, forfeiture, or other taking of title to or use of such ship (collectively, a "Total Loss") in an aggregate amount no greater than the amount that is equal to the contract price for such replacement ship less all compensation, damages and other payments (including insurance proceeds other than in respect of business interruption insurance) received by the Issuer or any Restricted Subsidiary from any Person in connection with the Total Loss in excess of amounts actually used to repay Debt secured by the ship subject to the Total Loss;
(s) the incurrence of Debt by the Issuer or any Restricted Subsidiary (other than and in addition to Debt permitted under clauses (a) through (r) above and clause (t) below) in an aggregate principal amount at any one time outstanding not to exceed $25 million; and
(t) the incurrence by a Person of Permitted Refinancing Debt in exchange for or the net proceeds of which are used to refund, replace or refinance
(i) Debt incurred by it pursuant to paragraph (a) of this Section 4.09, (ii) the Notes and (iii) Debt outstanding on the date of this Indenture.
(3) For purposes of determining compliance with any restriction on the incurrence of Debt in U.S. dollars where Debt is denominated in a different currency, the amount of such Debt shall be the Dollar Equivalent determined on the date of such determination, provided that if any such Debt denominated in a different currency is subject to a Currency Agreement (with respect to U.S. dollars) covering principal amounts payable on such Debt, the amount of such Debt expressed in U.S. dollars shall be adjusted to take into account the effect of such agreement. The principal amount of any Permitted Refinancing Debt incurred in the same currency as the Debt being refinanced shall be the Dollar Equivalent of the Debt refinanced determined on the date such Debt being refinanced was initially incurred. Notwithstanding any other provision of this covenant, for purposes of determining compliance with this Section 4.09, increases in Debt solely due to fluctuations in the exchange rates of currencies shall not be deemed to exceed the maximum amount that the Issuer or a Restricted Subsidiary may incur under this Section 4.09.
(4) For purposes of determining any particular amount of Debt under this Section 4.09:
(a) Guarantees, Liens or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included;
(b) any Liens granted pursuant to the equal and rateable provisions referred to in Section 4.14 (Limitation on Liens) shall not be treated as Debt; and
(c) accrual of interest, accrual of dividends, the accretion of accreted value, the obligation to pay commitment fees and the payment of interest in the form of additional Debt shall not be treated as Debt.
(5) In the event that an item of Debt meets the criteria of more than one of the types of Debt described in this Section 4.09, the Issuer, in its sole discretion, shall classify items of Debt and shall only be required to include the amount and type of such Debt in one of such clauses and the Issuer shall be entitled to divide and classify an item of Debt in more than one of the types of Debt described in this Section 4.09, and may change the classification of an item of Debt (or any portion thereof) to. any other type of Debt described in this Section 4.09 at any time.
Appears in 1 contract
Samples: Indenture (TMM Lines LTD LLC)
Limitation on Debt. CreateThe Issuer will not, incurand the Guarantor will not permit any of the Material Subsidiaries to, assume incur or suffer at any time be liable with respect to exist any Debt, except:Debt except any of the following (as determined on a consolidated basis):
(a) Indebtedness of any Credit Party to Agent and the Lenders Debt under this Agreement and/or the other Loan DocumentsAgreement;
(b) Debt owed to BNDES by the Material Subsidiaries, in an aggregate principal amount not to exceed R$5,000,000,000 at any one time outstanding and on terms not materially different than those relating to Debt existing on owed by the Effective Date Material Subsidiaries to BNDES as of the Closing Date;
(c) Debt incurred by the Issuer the net proceeds of which are used solely to refinance all or any portion of the Tranche D Notes purchased pursuant to a Tranche D Commitment and set forth in Schedule 8.1 attached hereto to pay related fees and any renewals or refinancing of such Debt (expenses with respect thereto; provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed (and shall be used solely to pay) (x) the aggregate principal amount outstanding of the Tranche D Notes so refinanced, as the case may be, together with accrued and unpaid interest thereon and all other amounts owing with respect thereto plus (y) reasonable costs and expenses incurred by the Issuer in connection with the issuance of such Debt, (ii) the proceeds (net of any amounts described in clause (i)(y) above in respect of such Debt) of such Debt are applied to prepay the applicable Tranche D Notes so refinanced in the manner specified in Section 2.04(a), (iii) if such Debt is Secured Debt, the purchasers or lenders of such Secured Debt shall have entered into collateral and collateral sharing arrangements and one or more intercreditor agreements reasonably consented to by the Required Interest Holders (provided that so long as any such agreement contains customary terms and conditions, such consent of the Required Interest Holders shall not be unreasonably withheld), (iv) the average weighted maturity of such Debt shall be at least six years from the Closing Date, (v) the "all-in" cost to the Issuer of such Debt shall not exceed that of the Tranche D Notes so refinanced, (vi) not more than $242,500,000 of the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal all Tranche D Notes so refinanced may have scheduled payments and the amount of any commitment reductions made thereon on or prior to such renewal the Principal Payment Date occurring in August 2006 (with each Tranche D Lender having the right to so refinance a ratable amount of the aggregate of its undrawn Tranche D Commitment or refinancing)its Purchases in respect of Tranche D Notes as follows: $142,155,173 for the Nokia Lenders, (ii$53,517,241 for the Siemens Lenders and $46,827,586 for the Alcatel Lenders) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iiivii) at simultaneously with the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing incurrence of such Debt;
, both (cA) any the Issuer shall have provided to the Administrative Agent the documentation evidencing such Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to and a loan or Responsible Officers' Certificate certifying compliance and projected compliance (on a Capitalized Lease provided that both at the time of pro forma basis) with Sections 5.11 and 5.12 and (B) immediately before and after giving effect to the incurrence thereof (i) of such Debt, no Default or Event of Default shall have occurred exist and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) intercompany Debt under any Hedging Transactions(i) of the Issuer owed to the Guarantor or to a Majority-Owned Subsidiary thereof, (ii) of a Wholly-Owned Subsidiary of the Issuer owed to the Issuer or another Wholly-Owned Subsidiary of the Issuer or (iii) of a Material Subsidiary owed to the Guarantor or a Majority-Owned Subsidiary thereof, provided that any such transaction is entered into for risk management purposes Debt owed by the Issuer (except Debt owed to the Guarantor) or the Guarantor shall be subordinated in right of payment to prior satisfaction in full of the obligations of the Issuer and not for speculative purposesthe Guarantor to the Purchasers hereunder on substantially the terms set forth in Schedule 7 hereto and the Issuer and the Guarantor shall enforce such subordination terms;
(e) Debt arising from judgments or decrees of the Material Subsidiaries not deemed otherwise permitted by this Section 5.10 in an aggregate principal amount at any time outstanding not to exceed $200,000,000; provided that no such Debt may be a Default or Event of Default under subsection (g) of Section 9.1owed to BNDES;
(f) Debt owing incurred by the Issuer pursuant to a Person Vendor Financing, provided that is a Credit Party, but only to such Vendor Financing must comply with the extent permitted under Section 8.7 hereofprovisions of Sections 5.18(d) and 5.19(d);
(g) Debt of the Comerica Issuer up to an aggregate principal amount of $10,000,000 at any time outstanding incurred for the purpose of financing the payment of all or part of the purchase price of property or assets acquired or constructed; provided that the aggregate principal amount of such Debt shall not exceed the lesser of the cost and fair market value of the Subordinated Debtproperty or assets so assigned or constructed;
(h) Debt arising under owed to BNDES by the Surety AgreementsIssuer, provided that the Borrowers shall promptly terminate Issuer applies the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion proceeds of the construction projects set forth on Schedule 8.1(i)such Debt to a Prepayment in accordance with Section 2.04;
(i) additional unsecured any Guaranties of the obligations of the Issuer under this Agreement provided by the Material Subsidiaries of the Guarantor under the last paragraph of this Section 5.10; or
(j) Debt not otherwise of the Issuer or a Material Subsidiary which is issued to refund or refinance any Debt outstanding or permitted to be incurred under this Section 5.10 (other than Debt described abovein Section 5.10(c)), provided that both at the time principal amount of the Debt so issued shall not exceed the principal amount of the Debt so refinanced and immediately after giving effect the Debt so issued shall have an average weighted maturity equal to or greater than the incurrence thereof average weighted maturity of the Debt so refinanced.
(i) no Default or Event the relevant prior authorization in respect of Default shall have occurred and be continuing or result therefrom and such Guaranty from the Central Bank, (ii) customary opinions of independent U.S. and Brazilian counsel regarding the aggregate amount enforceability of all such Debt Guaranty and (iii) such other documents or instruments as the Administrative Agent may reasonably request establishing the validity and enforceability of the Guaranty; provided, further, that upon each designation of Material Subsidiaries in accordance with the definition thereof, any Subsidiary added to such designation promptly shall not exceed $1,000,000 at execute and deliver the foregoing Guaranty, and upon such delivery, any one time outstandingSubsidiary that has been removed from such designation shall be released from its obligation under its Guaranty previously delivered under this paragraph.
Appears in 1 contract
Samples: Note Purchase Facility Agreement (Tele Norte Leste Participacoes Sa)
Limitation on Debt. Create, incur, assume or suffer to exist (a) The Company shall not Incur any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing)including Acquisition Debt, (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Dateunless, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof Incurrence of such Debt and the receipt and application of the proceeds therefrom, the Fixed Charge Ratio of the Company would be equal to or greater than 2.0 to 1.
(b) Notwithstanding the provisions of Section 1008(a), the Company may Incur each and all of the following: (i) no Default or Event of Default shall have occurred and be continuingCompany Refinancing Debt, and (ii) Debt of the aggregate amount Company to any of all its Restricted Subsidiaries or any Eligible Joint Venture that is expressly subordinated in right of payment to the Securities, provided that any transfer of such Debt by a Restricted Subsidiary or an Eligible Joint Venture (other than to another Restricted Subsidiary or another Eligible Joint Venture), or any transfer of the Company's ownership interest, or a portion thereof, in such Restricted Subsidiary or such Eligible Joint Venture or the interest, or a portion thereof, of Kiewit in a Permitted Joint Venture or an Eligible Joint Venture (which transfer has the effect of causing such Restricted Subsidiary or such Eligible Joint Venture to cease to be a Restricted Subsidiary or an Eligible Joint Venture, as the case may be), shall be deemed to be an Incurrence of Debt that is subject to the provisions of this Section 1008 other than this clause (ii), (iii) Debt in an aggregate principal amount not to exceed $100 million outstanding at any one time outstanding may be issued under or in respect of Permitted Working Capital Facilities, (includingiv) Non-Recourse Debt Incurred in respect of one or more Permitted Facilities in which the Company has a direct or indirect interest, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(dv) Debt under any Hedging Transactionsin respect of Currency Protection Agreements or Interest Rate Protection Agreements, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(evi) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Purchase Money Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and amount of such Debt (net of any other Bond Documents related thereto following the completion original issue discount) does not exceed 90% of the construction projects set forth on Schedule 8.1(i);
fair market value of the Property acquired, (ivii) additional unsecured the Securities and other Debt not otherwise described above, provided that both at outstanding as of the time Issue Date of and immediately after giving effect the Securities (other than Debt to the incurrence thereof extent that it is extinguished, retired, defeased or repaid in connection with the original issuance of the Securities), including Debt that is Incurred in respect of interest or discount on such Debt (ior Redeemable Stock issued as dividends in respect of Redeemable Stock) no Default pursuant to the terms of the agreement or Event instrument that governs such Debt (or such Redeemable Stock) as in effect on the Issue Date of Default shall have occurred and be continuing or result therefrom the Securities and (iiviii) the Debt in an aggregate principal amount of all such Debt shall not to exceed $1,000,000 75 million outstanding at any one time outstandingtime.
Appears in 1 contract
Samples: Indenture (Calenergy Co Inc)
Limitation on Debt. Create(a) The Issuer shall not, and shall not permit any Restricted Subsidiary to, create, issue, incur, assume assume, guarantee or suffer in any manner become directly or indirectly liable with respect to exist any Debtor otherwise become responsible for, except:
(a) Indebtedness contingently or otherwise, the payment of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (including any Acquired Debt); provided that (i) the aggregate principal amount of such renewed Issuer or refinanced any Guarantor may incur Debt shall not exceed (including Acquired Debt), if on the aggregate principal amount date of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing incurrence of such Debt shall and the application of the proceeds thereof, on a pro forma basis, the Leverage Ratio of the Issuer and its Restricted Subsidiaries would be on substantially the same or better terms as in effect with respect less than 6.0 to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, 1.0 and (ii) Restricted Subsidiaries that are not Guarantors may incur Debt (including Acquired Debt), if on the aggregate amount date of all the incurrence of such Debt and the application of the proceeds thereof, on a pro forma basis, the Leverage Ratio of the Restricted Subsidiaries that are not Guarantors would be less than 4.5 to 1.0.
(b) This covenant shall not, however, prohibit the following (collectively, “Permitted Debt”):
(i) the Incurrence by the Issuer or any Restricted Subsidiary in reliance on this clause (i) of Debt under Credit Facilities in an aggregate principal amount at any one time outstanding not to exceed $1,400.0 million;
(ii) the Incurrence by the Issuer of Debt pursuant to the Notes (excluding any Additional Notes);
(iii) any Debt of the Issuer or any Restricted Subsidiary (other than Debt described in another clause of this paragraph) outstanding on the date of this Indenture;
(iv) the Incurrence by the Issuer or any Restricted Subsidiary of intercompany Debt between the Issuer and any Restricted Subsidiary or between or among Restricted Subsidiaries; provided that (A) any disposition, pledge or transfer of any such Debt to a Person (other than a disposition, pledge or transfer to the Issuer or a Restricted Subsidiary) and (B) any transaction pursuant to which any Restricted Subsidiary that has Debt owing to the Issuer or another Wholly Owned Restricted Subsidiary ceases to be a Restricted Subsidiary, will, in each case, be deemed to be an Incurrence of such Debt not permitted by this clause (iv);
(v) guarantees of the Issuer’s Debt or Debt of any Restricted Subsidiary by the Issuer or any Restricted Subsidiary if such guaranteed Debt is permitted to be incurred in accordance with the provisions of this Section 4.06;
(vi) the Incurrence by the Issuer or any Restricted Subsidiary of Debt represented by Capitalized Lease Obligations, mortgage financings, purchase money obligations or other Debt Incurred or assumed for the purpose of financing or refinancing all or any part of the purchase price, lease expense or cost of any property or asset, tangible or intangible, including network assets (including switches, towers, software, rights-of-way, intellectual property, licenses, concessions, spectrum and other intangibles and facilities to house network assets used in the Issuer’s or any Restricted Subsidiary’s business and the capital stock or similar ownership interest of any Person engaged in substantially the same line of business as the Issuer and its Restricted Subsidiaries or reasonably related or ancillary thereto (including the cost of design, development, acquisition, construction (including capitalized interest, installation, improvement, transportation, integration and prepaid maintenance and all reasonable related fees or expenses); provided that the principal amount of such Debt so Incurred when aggregated with other Debt previously Incurred in reliance on this clause (vi) (and Permitted Refinancing Debt with respect thereto) and still outstanding shall not in the aggregate exceed the greater of (A) $200.0 million and (B) 5.0% of Total Assets;
(vii) the Incurrence by the Issuer or any Restricted Subsidiary of Debt arising from agreements providing for guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock, other than guarantees or similar credit support given by the Issuer or any Restricted Subsidiary of Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and Incurred by any renewals Person acquiring all or refinancings any portion of such Debt on terms substantially assets for the same or better than those in effect at the time purpose of the original incurrence of financing such Debtacquisition;
(dviii) the Incurrence by the Issuer or any Restricted Subsidiary of Debt under any Hedging Transactions, provided that such transaction is Currency Agreements entered into for risk management purposes in the ordinary course of business and not for speculative purposes;
(eix) the Incurrence by the Issuer or any Restricted Subsidiary of Debt arising from judgments or decrees under Interest Rate Agreements entered into in the ordinary course of business and not deemed to be a Default or Event of Default under subsection (g) of Section 9.1for speculative purposes;
(fx) the Incurrence of Debt owing by the Issuer or any Restricted Subsidiary of Debt in respect of workers’ compensation and claims arising under similar legislation, or pursuant to a Person that is a Credit Party, but only to self-insurance obligations and not in connection with the extent permitted under Section 8.7 hereofborrowing of money or the obtaining of advances or credit;
(gxi) the Comerica Incurrence of Debt by the Issuer or any Restricted Subsidiary arising from (A) the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Debt is extinguished within 5 Business Days of Incurrence, (B) bankers’ acceptances, performance, surety, judgment, appeal or similar bonds, instruments or obligations, (C) completion guarantees provided or letters of credit obtained by the Issuer or any Restricted Subsidiary in the ordinary course of business; and (D) the Subordinated Debtfinancing of insurance premiums in the ordinary course of business;
(hxii) the Incurrence by a Person of Permitted Refinancing Debt arising under in exchange for or the Surety Agreementsnet proceeds of which are used to refund, provided replace or refinance Debt Incurred by it pursuant to, or described in, paragraphs (a), (b)(ii), (b)(iii) and (b)(vi) of this Section 4.06, as the case may be; and
(xiii) the incurrence of other Debt not to exceed in the aggregate the greater of (i) $200.0 million and (ii) 5.0% of Total Assets.
(c) Notwithstanding any other provision of this Section 4.06, for purposes of determining compliance with this Section 4.06, increases in Debt solely due to fluctuations in the exchange rates of currencies will not be deemed to exceed the maximum amount that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and Issuer may Incur under this Section 4.06.
(d) For purposes of determining any other Bond Documents related thereto following the completion particular amount of the construction projects set forth on Schedule 8.1(i);Debt under this Section 4.06:
(i) additional unsecured obligations with respect to letters of credit, guarantees or Liens, in each case supporting Debt otherwise included in the determination of such particular amount, shall not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and included;
(ii) any Liens granted pursuant to the aggregate equal and ratable provisions referred to in Section 4.07 will not be treated as Debt; and
(iii) accrual of interest, accrual of dividends, the accretion of accreted value, the obligation to pay commitment fees and the payment of interest in the form of additional Debt will not be treated as Debt.
(e) In the event that an item of Debt meets the criteria of more than one of the types of Debt described in this Section 4.06, the Issuer, in its sole discretion, shall classify items of Debt and shall only be required to include the amount and type of all such Debt in one of such clauses and the Issuer shall not exceed $1,000,000 be entitled to divide and classify an item of Debt in more than one of the types of Debt described in this Section 4.06, and may change the classification of an item of Debt (or any portion thereof) to any other type of Debt described in this Section 4.06 at any one time outstandingtime.
Appears in 1 contract
Samples: Indenture (Digicel Group LTD)
Limitation on Debt. Create, incur, assume assume, permit to exist, or suffer otherwise become liable with respect to exist any Debt, except:
(a) Indebtedness Debt of any Credit Party to Agent and the Lenders Borrower existing or arising under this Agreement and/or the and any other Loan DocumentsDocument;
(b) Debt of any Borrower owed to another Borrower;
(c) Debt incurred to finance the acquisition, construction, or improvement of fixed or capital assets (including Capital Lease Obligations) secured by a Lien permitted under Section 7.02(g); provided that (i) such Debt is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement, (ii) such Debt when incurred shall not exceed the purchase price or the construction costs of the asset financed, and (iii) the aggregate principal amount of Debt permitted by this Section 7.01(c), shall not exceed $500,000 in the aggregate at any time outstanding;
(d) Debt existing on the Effective Date date hereof and set forth in listed on Schedule 8.1 attached hereto 7.1(d) and any renewals or refinancing refinancings, modifications, renewals, and extensions of any such Debt (Debt; provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed be increased from the aggregate principal amount outstanding at the time of the original Debt outstanding on the Effective Date (less any principal payments such refinancing, modification, renewal, or extension, and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing maturity of such Debt shall not be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreementshortened, and (iii) the terms relating to collateral (if any) and subordination (if any) of any such refinancing, modification, renewing, or extending Debt, and of any agreement entered into and of any instrument issued in connection therewith, are not less favorable in any material respect to the Borrowers or the Lender than the terms of any agreement or instrument governing the Debt being so refinanced, modified, renewed, or extended;
(e) Debt of any Person that becomes a Borrower after the date hereof; provided that (i) such Debt exists at the time of such renewal or refinancing no Default or Event of Default has occurred Person becomes a Borrower and is continuing not created in contemplation of, or would result from the renewal or refinancing of in connection with, such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to Person becoming a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuingBorrower, and (ii) the aggregate principal amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in permitted by this clause (c) which is set forth on Schedule 8.1 hereofSection 7.01(e) shall not exceed $5,000,000, and 500,000 at any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1outstanding;
(f) Debt owing to a Person that is a Credit Party, but only to Guaranty Obligations incurred in the extent permitted under Section 8.7 hereofordinary course of business by any Borrower of obligations of any other Borrower;
(g) current liabilities incurred in the Comerica Debt ordinary course of business including as incurred through the obtaining of credit and for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services (excluding for the Subordinated Debtavoidance of doubt merchant cash advances or any sale of receivables);
(h) Debt incurred by any Borrower arising under from agreements providing for earn-outs, indemnification or from guaranties or letters of credit, surety bonds, performance bonds or other contingent obligations securing the Surety Agreementsperformance of such Borrower pursuant to such agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and permitted dispositions of any other Bond Documents related thereto following the completion business, assets of the construction projects set forth on Schedule 8.1(i)a Borrower or any of its Subsidiaries;
(i) additional unsecured Debt not in respect of netting services, overdraft protections and otherwise described abovein connection with deposit accounts;
(j) non-recourse Debt incurred by a Borrower to finance the payment of insurance premiums of that Borrower;
(k) Debt to any Person providing workers’ compensation, provided that both at the time of and immediately after giving effect health, or disability insurance or other employee benefits or property, casualty, or liability insurance to the incurrence thereof Loan Parties incurred in connection with that Person’s providing those benefits or that insurance pursuant to customary reimbursement or indemnification obligations to that Person;
(il) no Default or Event Debt of Default shall have occurred and be continuing or result therefrom and any Borrower owed to an Affiliate of such Borrower incurred in the ordinary course of business consistent with such Borrower’s historical Affiliate transactions; and
(iim) Other Debt of the Borrowers in an aggregate principal amount of all such Debt shall not to exceed $1,000,000 at any one time outstandingtime; provided that none of such Debt may be secured.
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness The Company
(1) will not, and will not permit any of its Restricted Subsidiaries to, Incur any Credit Party Debt; and
(2) will not permit any of its Restricted Subsidiaries that is not a Guarantor to Agent Incur any Preferred Stock (other than Preferred Stock of Restricted Subsidiaries held by the Company or a Restricted Subsidiary, so long as it is so held); provided that the Company or any Restricted Subsidiary may Incur Debt and any Restricted Subsidiary that is not a Guarantor may Incur Preferred Stock if, on the date of the Incurrence, after giving effect to the Incurrence and the Lenders under this Agreement and/or receipt and application of the other Loan Documents;proceeds therefrom, the Fixed Charge Coverage Ratio is not less than 2.0:1.0.
(b) Notwithstanding the foregoing, the Company and, to the extent provided below, any Debt existing on Restricted Subsidiary may Incur the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such following (“Permitted Debt”):
(1) Debt (“Permitted Bank Debt”) of the Company or any Guarantor pursuant to Credit Facilities; provided that (i) the aggregate principal amount at any time outstanding does not exceed $1,500.0 million, less any amount of such renewed Debt permanently repaid as provided under Section 4.12;
(2) Debt of the Company or refinanced any Restricted Subsidiary to the Company or any Restricted Subsidiary so long as such Debt shall continues to be owed to the Company or a Restricted Subsidiary;
(3) Debt of the Company pursuant to the Notes (other than Additional Notes, but including Exchange Notes in respect of Notes and Additional Notes) and Debt of any Guarantor pursuant to a Note Guaranty of the Notes (including Additional Notes and Exchange Notes);
(4) Debt (“Permitted Refinancing Debt”) constituting an extension or renewal of, replacement of, or substitution for, or issued in exchange for, or the net proceeds of which are used to repay, redeem, repurchase, refinance or refund, including by way of defeasance (all of the above, for purposes of this clause, “refinance”) then outstanding Debt in an amount not to exceed the aggregate principal amount of the original Debt so refinanced, plus premiums, fees and expenses; provided that
(A) in case the Debt to be refinanced is Subordinated Debt, the new Debt, by its terms or by the terms of any agreement or instrument pursuant to which it is outstanding is expressly made subordinate in right of payment to the Notes at least to the extent that the Debt to be refinanced is subordinated to the Notes,
(B) the new Debt either does not have a Stated Maturity prior to the Stated Maturity of the Debt to be refinanced or has a Stated Maturity at least 91 days after the maturity of the Notes, and the Average Life of the new Debt is at least equal to the remaining Average Life of the Debt to be refinanced,
(C) in no event may Debt of the Company or any Guarantor be refinanced pursuant to this clause by means of any Debt of any Restricted Subsidiary that is not a Guarantor, and
(D) Debt Incurred pursuant to clauses (1), (2), (5), (6), (9), (10), (12), (13), (14) and (15) may not be refinanced pursuant to this clause;
(5) Hedging Agreements of the Company or any Restricted Subsidiary entered into in the ordinary course of business for the purpose of limiting risks associated with the business of the Company and its Restricted Subsidiaries and not for speculation;
(6) Debt of the Company or any Restricted Subsidiary incurred in respect of workers’ compensation claims and self-insurance obligations and with respect to letters of credit and bankers’ acceptances issued in the ordinary course of business and not supporting Debt, including letters of credit for operating purposes or completion guarantees or supporting indemnity, bid, warranty, performance, surety, appeal or similar bonds, or indemnification, adjustment of purchase price or similar obligations incurred in connection with the acquisition or disposition of any business or assets;
(7) Debt of the Company or any Restricted Subsidiary (a) that is outstanding on the Effective Issue Date (less any principal payments and the amount of any commitment reductions made thereon or will be Incurred on or prior to such renewal the Completion Date as a result of the Transactions or refinancing(b) Incurred under the Interim Ordinary Course Transactions (and, for purposes of clause (4)(D), not otherwise constituting Permitted Debt); provided that no Debt for borrowed money Incurred under clause (iib) shall remain outstanding following the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Spin-Off Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets8) Acquired Debt; provided that, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof thereof,
(A) the Company could incur at least $1.00 of Debt pursuant to paragraph (a) above or
(B) the Fixed Charge Coverage Ratio of the Company would be greater than such ratio immediately prior to such incurrence;
(9) Obligations of the Company or any Restricted Subsidiary in respect of customer advances received and held in the ordinary course of business;
(10) Debt of the Company and any of its Restricted Subsidiaries consisting of (i) no Default the financing of insurance premiums or Event of Default shall have occurred and be continuing, and (ii) take-or-pay obligations contained in supply arrangements, in each case, incurred in the aggregate amount ordinary course of all such Debt at any one time outstanding business;
(including, without limitation, any 11) Debt of the type described in Company or any Restricted Subsidiary, which may include Capital Leases, mortgage financings or purchase money obligations, Incurred on or after the Issue Date no later than 180 days after the date of purchase or completion of construction or improvement of property, plant or equipment for the purpose of financing all or any part of the purchase price or cost of construction or improvement; provided that the aggregate principal amount of any Debt (including the aggregate outstanding amount of Permitted Refinancing Debt Incurred to refinance Debt Incurred pursuant to this clause) at any time outstanding pursuant to this clause may not exceed the greater of (A) $75.0 million and (B) 2.0% of Consolidated Net Tangible Assets of the Company;
(12) Debt of the Company or any Restricted Subsidiary consisting of Guarantees of Debt of the Company or any Restricted Subsidiary Incurred under any other clause of this covenant;
(13) Debt incurred on behalf of, or representing Guarantees of Debt of, joint ventures not to exceed the greater of (A) $100.0 million and (B) 2.6% of Consolidated Net Tangible Assets at any time outstanding;
(14) Debt supported by a letter of credit Incurred under clause (1) above in the same principal amount; and
(15) Debt of the Company or any Restricted Subsidiary Incurred on or after the Issue Date not otherwise permitted in an aggregate principal amount at any time outstanding not to exceed the greater of (A) $200.0 million and (B) 5.3% of Consolidated Net Tangible Assets.
(c) which Notwithstanding any other provision of this covenant, for purposes of determining compliance with this covenant, increases in Debt solely due to fluctuations in the exchange rates of currencies will not be deemed to exceed the maximum amount that the Company or a Restricted Subsidiary may Incur under this covenant. For purposes of determining compliance with any U.S. dollar-denominated restriction on the Incurrence of Debt, the U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred; provided that if such Debt is set forth Incurred to refinance other Debt denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on Schedule 8.1 hereof) the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Debt does not exceed $5,000,000, and any renewals or refinancings the principal amount of such Debt being refinanced. The principal amount of any Debt Incurred to refinance other Debt, if Incurred in a different currency from the Debt being refinanced, shall be calculated based on terms substantially the same or better than those currency exchange rate applicable to the currencies in which such respective Debt is denominated that is in effect at on the time date of such refinancing. Guarantees or Liens in respect of, or obligations in respect of letters of credit relating to, Debt which is otherwise included in the determination of a particular amount of Debt shall not be included in the determination of such amount of Debt; provided that the Incurrence of the original incurrence Debt represented by such guarantee, Lien or letter of such Debt;credit, as the case may be, was in compliance with this covenant.
(d) In the event that an item, or a portion of such item, taken by itself, of Debt or Preferred Stock meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (14) above or such item is (or a portion, taken by itself (without taking into account any other Permitted Debt (other than Permitted Debt under clause (8) above) being incurred on the same date, would be) entitled to be Incurred pursuant to paragraph (a) of this covenant, the Company shall, in its sole discretion, classify or reclassify, or later divide, classify or reclassify, such item of Debt in any Hedging Transactionsmanner that complies with this covenant, and may change the classification of an item of Debt (or any portion thereof) to any other type of Debt described in this covenant at any time; provided that such transaction is entered into for risk management purposes and not for speculative purposes;Debt under the Credit Agreement outstanding on the Completion Date shall be deemed at all times to be incurred under clause (1) of Permitted Debt.
(e) Neither the Company nor any Guarantor may Incur any Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only subordinated in right of payment to other Debt of the Company or the Guarantor unless such Debt is also subordinated in right of payment to the extent permitted under Section 8.7 hereof;
(g) Notes or the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect relevant Note Guaranty to the incurrence thereof (i) no Default same extent. This does not apply to distinctions between categories of Debt that exist by reason of any structural subordination, Liens or Event Guarantees securing or in favor of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount some but not all of all such Debt shall not exceed $1,000,000 at any one time outstandingDebt.
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist (a) The Borrower shall not Incur any Debt, except:
(a) Indebtedness including Acquisition Debt, unless after giving effect to the Incurrence of any Credit Party to Agent such Debt and the Lenders under this Agreement and/or receipt and application of the other Loan Documents;proceeds therefrom, the Fixed Charge Ratio of the Borrower would be equal to or greater than 2.0 to 1.
(b) any Debt existing on Notwithstanding the Effective Date foregoing, the Borrower may Incur each and set forth in Schedule 8.1 attached hereto and any renewals or refinancing all of such Debt (provided that the following:
(i) Debt issued in exchange for, or the aggregate proceeds of which are used to Refinance, Debt of the Borrower in an amount (or, if such new Debt provides for an amount less than the principal amount thereof to be due and payable upon a declaration of such renewed or refinanced Debt shall acceleration thereof, with an original issue price) not to exceed the aggregate amount so exchanged or Refinanced (plus accrued interest and fees and expenses related to such exchange or Refinancing), the amount so exchanged or Refinanced being equal to the lesser of (x) the principal amount or involuntary liquidation preference of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on so exchanged or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, Refinanced and (iiiy) if the Debt being exchanged or Refinanced was issued with an original issue discount, the accreted value thereof (as determined in accordance with GAAP) at the time of such renewal Refinancing; provided that such Debt of the Borrower will rank pari passu with or refinancing no Default expressly subordinated in right of payment to the Obligations and the Average Life of the new Debt shall be equal to or Event greater than the Average Life of Default has occurred and is continuing the Debt to be exchanged or would result from the renewal or refinancing of such DebtRefinanced;
(cii) any Debt of Borrowers the Borrower to any of its Subsidiaries and to any Joint Ventures in which the Borrower is a direct or indirect partner, shareholder, member or other participant if such Debt of the Borrower is expressly subordinated in right of payment to the Obligations; provided that any transfer of such Debt by a Subsidiary incurred or a Joint Venture (other than to finance another Subsidiary or Joint Venture) will be deemed to be an Incurrence of Debt unless (x) such Debt has an Average Life which is greater than that of the acquisition of fixed or capital assets, whether pursuant Borrower Indenture Securities and which extends to a loan date later than the then Final Maturity Date or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (iiy) the aggregate amount of all such Debt which has an Average Life which is equal to or less than that of the Borrower Indenture Securities or which extends to, or to a date earlier than, the then Final Maturity Date does not exceed $3 million;
(iii) Debt in an aggregate principal amount not to exceed $10 million at any one time outstanding;
(iv) Debt in respect of Currency Protection Agreements or Interest Rate Protection Agreements; and
(v) Debt outstanding as of the date of this Agreement. For purposes of determining any particular amount of Debt under this subsection 7.2, Guarantees of, or obligations with respect to letters of credit supporting, Debt otherwise included in the determination of such particular amount shall not be included. For purposes of determining compliance with the provisions of this subsection 7.2, in the event that an item of Debt meets the criteria of more than one of the types of Debt described in the above 66 61 clauses, the Borrower, in its sole discretion, shall classify such item of Debt and only be required to include the amount and type of such Debt in one of such clauses.
(c) Notwithstanding any other provision hereof, including without limitation any other provision of this subsection 7.2, the Borrower shall not Incur any Debt at any time unless (i) no payment or prepayment in respect of principal of such Debt (including, without limitation, any Debt payments in respect of any sinking fund) shall be due or can become due (other than as a result of the type described in this clause (cacceleration thereof) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only prior to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom then Final Maturity Date and (ii) the aggregate outstanding principal amount of all Debt Incurred by the Borrower at such Debt time (after giving effect to the Incurrence of such Debt) shall not exceed $1,000,000 at any one time outstanding540,000,000.
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist (a) The Borrower shall not Incur any Debt, except:
(a) Indebtedness including Acquisition Debt, unless after giving effect to the Incurrence of any Credit Party to Agent such Debt and the Lenders under this Agreement and/or receipt and application of the other Loan Documents;proceeds therefrom, the Fixed Charge Ratio of the Borrower would be equal to or greater than 2.0 to 1.
(b) any Debt existing on Notwithstanding the Effective Date foregoing, the Borrower may Incur each and set forth in Schedule 8.1 attached hereto and any renewals or refinancing all of such Debt (provided that the following:
(i) Debt issued in exchange for, or the aggregate proceeds of which are used to Refinance, Debt of the Borrower in an amount (or, if such new Debt provides for an amount less than the principal amount thereof to be due and payable upon a declaration of such renewed or refinanced Debt shall acceleration thereof, with an original issue price) not to exceed the aggregate amount so exchanged or Refinanced (plus accrued interest and fees and expenses related to such exchange or Refinancing), the amount so exchanged or Refinanced being equal to the lesser of (x) the principal amount or involuntary liquidation preference of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on so exchanged or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, Refinanced and (iiiy) if the Debt being exchanged or Refinanced was issued with an original issue discount, the accreted value thereof (as determined in accordance with GAAP) at the time of such renewal Refinancing; provided that such Debt of the Borrower will rank pari passu with or refinancing no Default expressly subordinated in right of payment to the Obligations and the Average Life of the new Debt shall be equal to or Event greater than the Average Life of Default has occurred and is continuing the Debt to be exchanged or would result from the renewal or refinancing of such DebtRefinanced;
(cii) any Debt of Borrowers the Borrower to any of its Subsidiaries and to any Joint Ventures in which the Borrower is a direct or indirect partner, shareholder, member or other participant if such Debt of the Borrower is expressly subordinated in right of payment to the Obligations; provided that any transfer of such Debt by a Subsidiary incurred or a Joint Venture (other than to finance another Subsidiary or Joint Venture) will be deemed to be an Incurrence of Debt unless (x) such Debt has an Average Life which is greater than that of the acquisition of fixed or capital assets, whether pursuant Borrower Indenture Securities and which extends to a loan date later than the then Final Maturity Date or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (iiy) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt which has an Average Life which is equal to or less than that of the type described in this clause (c) Borrower Indenture Securities or which is set forth on Schedule 8.1 hereof) shall extends to, or to a date earlier than, the then Final Maturity Date does not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt3 million;
(diii) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and in an aggregate principal amount not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 10 million at any one time outstanding;
(iv) Debt in respect of Currency Protection Agreements or Interest Rate Protection Agreements; and
(v) Debt outstanding as of the date of this Agreement. For purposes of determining any particular amount of Debt under this subsection 7.2, Guarantees of, or obligations with respect to letters of credit supporting, Debt otherwise included in the determination of such particular amount shall not be included. For purposes of determining compliance with the provisions of this subsection 7.2, in the event that an item of Debt meets the criteria of more than one of the types of Debt described in the above clauses, the Borrower, in its sole discretion, shall classify such item of Debt and only be required to include the amount and type of such Debt in one of such clauses.
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or and the other Loan Documents;
(b) any Debt of any US/Canadian Company existing on the Effective Date and set forth in Schedule 8.1 attached hereto (other than pursuant to this Agreement, and other than any Subordinated Debt existing on the Effective Date), and any renewals or refinancing of such Debt (provided that (i) in amounts not exceeding the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date scheduled amounts (less any principal payments and required amortization according to the amount of any commitment reductions made thereon on or prior to such renewal or refinancingterms thereof), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(ci) any Debt of Borrowers Borrower or any Domestic Subsidiary other than pursuant to this Agreement and other than Debt set forth in Schedule 8.1 attached hereto incurred to finance the acquisition of fixed or capital assets, assets (whether pursuant to a loan or a Capitalized Lease provided that both Lease) in an aggregate amount not exceeding $10,000,000 at any time outstanding, and any renewals or refinancing of such Debt in amounts not exceeding the time of and immediately after giving effect scheduled amounts (less any required amortization according to the incurrence thereof (i) no Default or Event of Default shall have occurred terms thereof), on substantially the same terms and be continuing, otherwise in compliance with this Agreement; and (ii) Debt of any Canadian Subsidiary other than pursuant to this Agreement and other than Debt set forth in Schedule 8.1 attached hereto incurred to finance the acquisition of fixed or capital assets (whether pursuant to a loan or a Capitalized Lease) in an aggregate amount not exceeding $1,000,000 at any time outstanding, and any renewals or refinancing of all such Debt at in amounts not exceeding the scheduled amounts (less any one time outstanding required amortization according to the terms thereof), on substantially the same terms and otherwise in compliance with this Agreement;
(d) (i) Subordinated Debt evidenced by the Convertible Subordinated Notes existing on the Effective Date, and any renewals or refinancing of such Debt which, in each case have been subordinated on substantially on the same terms, and which shall otherwise be in compliance with this Agreement (including, without limitation, any Section 8.11 hereof), and (ii) subject to Section 3A.11 hereof, other Subordinated Debt of incurred after the type described Effective Date in this clause (c) which is set forth on Schedule 8.1 hereof) shall an aggregate principal amount not to exceed $5,000,000, and 20,000,000 at any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the one time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposesoutstanding;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default Borrower under subsection (g) of Section 9.1any Hedging Transactions;
(f) Debt owing to a Person that is a Credit Partyintercompany loans, but only to the extent permitted under the other applicable terms and limitations of this Agreement, including but not limited to Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
of any Loan Party assumed pursuant to a Permitted Acquisition (h) expressly excluding Debt arising under the Surety Agreementsevidenced by any Seller Note), provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion such Debt was not entered into, extended or renewed in contemplation of the construction projects set forth on Schedule 8.1(isuch acquisition (including Debt secured by Liens permitted by Section 8.2(c);
(i) additional unsecured Debt not otherwise described above), provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 10,000,000;
(h) Seller Debt not exceeding $10,000,000 in aggregate principal amount at any one time outstanding;
(i) additional unsecured Debt of any Loan Party not exceeding $20,000,000 in aggregate principal amount at any one time outstanding;
(j) Debt of any Canadian Subsidiary to any financial institution which is a Lender hereunder in an amount not to exceed $15,000,000 in aggregate principal amount at any one time outstanding; and
(k) (i) Debt of any Non-US/Canadian Company to the extent guaranteed by any US/Canadian Company, and (ii) Debt of any Non-US/Canadian Company to the extent not guaranteed by any US/Canadian Company provided that the aggregate principal amount of such Debt, when added to the Guarantee Obligations incurred under Section 8.3(g) hereof, shall not exceed $25,000,000 at any one time outstanding.
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist (a) The Company shall not Incur any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing)including Acquisition Debt, (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately unless after giving effect to the incurrence thereof Incurrence of such Debt and the receipt and application of the proceeds therefrom, the Fixed Charge Ratio of the Company would be greater than 2 to 1. The Company's obligation to comply with this covenant will terminate if and when the Notes become Investment Grade.
(b) Notwithstanding the foregoing, the Company may Incur each and all of the following:
(i) no Default Debt under or Event in respect of Default shall have occurred and be continuing, and (ii) the Bank Credit Agreement in an aggregate principal amount of all such Debt at any one time outstanding not to exceed $600 million;
(includingii) Debt issued in exchange for, without limitationor the proceeds of which are used to refinance, any outstanding Notes or other Debt of the type described Company in an amount (or, if such new Debt provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration thereof, with an original issue price) not to exceed the amount so exchanged or refinanced (plus accrued interest, premium, if any, and fees and expenses related to such exchange or refinancing); provided that (A) the date of any scheduled payment of principal by way of sinking fund, mandatory redemption or otherwise (including defeasance) on any Debt so refinanced or exchanged otherwise due after the final scheduled Maturity Date of the Notes shall not occur prior to such Maturity Date as a result of such exchange or refinancing and (B) new Debt the proceeds of which are used to exchange or refinance the Notes or other Debt of the Company that is subordinated in right of payment to the Notes shall only be permitted under this clause (cii) if (x) in case the Notes are exchanged or refinanced in part, such new Debt, by its terms or by the terms of any agreement or instrument pursuant to which such Debt is set forth on Schedule 8.1 hereofissued, is expressly made pari passu with, or subordinate in right of payment to, the remaining Notes, (y) in case the Debt to be exchanged or refinanced is subordinated in right of payment to the Notes, such new Debt, by its terms or by the terms of any agreement or instrument pursuant to which such Debt is issued, is expressly made subordinate in right of payment to the Notes, at least to the extent that the Debt to be exchanged or refinanced is subordinated in right of payment to the Notes and (z) in case the Notes are exchanged or refinanced in part or the Debt to be exchanged or refinanced is subordinated in right of payment to the Notes, as of the date the new Debt is Incurred, the Average Life of the new Debt shall not exceed $5,000,000be equal to or greater than the Average Life of the Notes or Debt to be exchanged or refinanced;
(iii) Debt of the Company to any of its Consolidated Subsidiaries, and except that any renewals or refinancings transfer of such Debt on terms substantially the same or better by a Consolidated Subsidiary (other than those in effect at the time to another Consolidated Subsidiary) will be deemed to be an Incurrence of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, ; provided that such transaction Debt is entered into for risk management purposes and not for speculative purposes;expressly subordinated in right of payment to the Notes; and
(eiv) Debt arising from judgments or decrees in an aggregate principal amount not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 50 million at any one time outstanding.
(c) For purposes of determining any particular amount of Debt under this Section 3.3, Guarantees of, or obligations with respect to letters of credit supporting, Debt otherwise included in the determination of such particular amount shall not be included. For purposes of determining compliance with this Section 3.3, (A) in the event that an item of Debt meets the criteria of more than one of the types of Debt described in the above clauses, the Company, in its sole discretion, shall classify such item of Debt and only be required to include the amount and type of such Debt in one of such clauses and (B) the amount of Debt issued at a price that is less than the principal amount thereof shall be equal to the amount of the liability in respect thereof determined in conformity with GAAP.
Appears in 1 contract
Limitation on Debt. CreateThe Borrower will not, incurand will not permit any of its Subsidiaries to, assume incur or suffer at any time be liable with respect to exist any Debt, Debt except:
(ai) Indebtedness of any Credit Party to Agent and Debt under the Lenders under this Agreement and/or the other Loan Financing Documents;
(bii) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any date hereof identified on Schedule 5.12 and refinancings thereof; PROVIDED that the principal payments and amount thereof is not increased beyond the amount outstanding thereunder on the date hereof (PLUS reasonable costs and expenses associated with such refinancings);
(iii) Debt secured by Liens permitted by Section 5.10;
(iv) Permitted Subordinated Debt of the Borrower and its Subsidiaries;
(v) Debt owed by the Borrower to any commitment reductions made thereon on of its Subsidiaries or prior by any Subsidiary to such renewal the Borrower or refinancing)any other Subsidiary;
(vi) Endorsements of negotiable instruments for collection in the ordinary course of business;
(vii) [Debt consisting of the Borrower's obligations to purchase the natural gas pursuant to the terms of that certain Gas Purchase Contract dated February 7, (ii) 1979, as amended, between the renewal or refinancing Borrower, successor to Texas Gas Transmission Corporation, as buyer, and West Monroe Gas Gathering Corporation, et al., successor to Reliance Trust, et al., as sellers, covering the sale and purchase of such Debt shall be on substantially natural gas from the same or better terms West Monroe Field, Union Parish, Louisiana, as in effect with respect to such Debt on the Effective Closing Date;] and [To discuss nature of transaction, amounts and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal whether it is Debt or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debta forward purchase;] and
(cviii) any Additional Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof not permitted by clauses (i) no Default or Event of Default shall have occurred and be continuingthrough (vii) above, and (ii) PROVIDED, HOWEVER, that the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of incurred by the type described in Borrower and its Subsidiaries pursuant to this clause (c) which is set forth on Schedule 8.1 hereofviii) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 _______ at any one time outstanding.
Appears in 1 contract
Samples: Senior Reducing Revolving Credit Facility (Bellwether Exploration Co)
Limitation on Debt. CreateThe Borrower shall not, and shall not permit any Subsidiary of the Borrower to, incur, assume assume, create or suffer to exist any Debt, exceptexcept for:
(a) Indebtedness in the case of any Credit Party to Agent and the Lenders Borrower:
(i) Debt under this Agreement and/or the other Loan Financing Documents;
(bii) any Debt existing on the Effective Date and set forth in on Schedule 8.1 attached hereto VI;
(iii) Debt representing a refinancing, replacement or refunding of Debt permitted by Section 5.07(a)(i), (ii), (iii), (vii) and any renewals or refinancing of such Debt (ix); provided that that:
(iA) (x) the aggregate principal amount of such renewed Debt outstanding or refinanced Debt shall available will not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) available at the time of such renewal refinancing, replacement or refinancing no Default refunding (plus fees and expenses, including any premium and defeasance costs relating to such refinancing, replacement or Event of Default has occurred and is continuing or would result from refunding), (y) the renewal or refinancing final maturity of such DebtDebt is later than the Initial Term Loan Termination Date (other than Debt that can be settled in the Borrower’s Capital Stock (other than Redeemable Stock); provided that such Debt may only be settled in cash prior to the Initial Term Loan Termination Date up to an aggregate principal amount not to exceed $400,000,000 and not before July 29, 2006; provided further that the Debt being refinanced, replaced or refunded has a final maturity date on or prior to the Initial Term Loan Termination Date) (z) (1) such Debt shall not contain any Payment Restriction more restrictive than the Payment Restrictions contained in the Debt being refinanced, replaced or refunded or (2) in the opinion of the Borrower, such Payment Restrictions are consistent with customary market terms for a financing of its nature and do not adversely affect the ability of the Borrower to meet its payment Obligations under the Financing Documents; and
(B) no obligor shall be liable for any such Debt except to the extent that it was liable for the Debt so refinanced, replaced or refunded, unless such liability in respect of such Debt would otherwise be permitted by Section 5.07(b);
(civ) Debt owing by the Borrower to a Consolidated Subsidiary of the Borrower so long as such Debt is subordinated on terms reasonably satisfactory to the Agent to the Debt of the Borrower under the Financing Documents;
(v) any Lien permitted by Section 5.10 that constitutes Debt not otherwise permitted by this Section;
(vi) Letters of Borrowers or any Subsidiary incurred credit, surety bonds, Guarantees and performance bonds supporting obligations of Subsidiaries so long as, after giving effect to finance such letters of credit, surety bonds, Guarantees and performance bonds (and the acquisition of fixed or capital assetsInvestments represented thereby), whether pursuant to a loan or a Capitalized Lease provided that both at the time of Borrower would be in compliance with Section 5.16;
(vii) other Debt so long as (x) immediately before and immediately after giving effect to the incurrence and application of the proceeds thereof (i) no Default or Event of Default shall have occurred and be continuing, and (iiy) the aggregate amount of all if such Debt at any one time outstanding (includingis secured by a Lien on the Creditor Group Collateral on a first-lien basis, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings final scheduled maturity of such Debt shall in no event be on terms substantially or prior to the same Initial Term Loan Termination Date and (z) if such Debt is secured by a Lien on the Creditor Group Collateral on a first-lien basis, such Debt shall not have any scheduled amortization on or better than those prior to the Initial Term Loan Termination Date in effect at the time an aggregate amount in excess of 10% of the original incurrence initial amount of such Debt;
(dviii) Debt under incurred as a bridge financing for a proposed sale, transfer or other disposition of assets pursuant to Section 5.18(iv) with respect to assets acquired after June 23, 2005; provided that (w) the only direct or contingent obligor in respect of such Debt is the holder of the assets that are the subject of such sale, transfer or other disposition, (x) the interest rate applicable to such Debt does not exceed the then applicable market interest rate, (y) such Debt is repaid with the proceeds of such sale, transfer or other disposition upon consummation thereof and (z) such Debt was incurred in connection with the acquisition by the Borrower of the assets that are the subject of such sale, transfer or other disposition;
(ix) Debt incurred to refinance, replace or refund any Hedging Transactionsof the obligations arising in respect of the Existing Trust Preferred Securities, provided that (x) the only direct or contingent obligor in respect of such transaction Debt is entered into for risk management purposes the Borrower and not for speculative purposes;(y) the final scheduled maturity of such Debt shall be later than the Initial Term Loan Termination Date; and
(ex) Debt arising from judgments or decrees in an aggregate principal amount not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Partyexceed $500,000,000 at any one time outstanding, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt so long as immediately before and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence and application of the proceeds thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and continuing; and
(iib) in the aggregate amount case of all such Debt shall not exceed $1,000,000 at any one time outstanding.the Borrower’s Subsidiaries:
Appears in 1 contract
Limitation on Debt. CreateThe Borrowers shall not:
(a) permit any Significant Subsidiary to create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) Debt owing by any Significant Subsidiary to the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), Borrowers; and
(ii) so long as the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise Borrowers would be in compliance with this AgreementSections 5.08 and 5.09 hereof (calculated as of the date of, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to to, the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
), Guarantees of the 2004 Senior Notes and the Bond Purchase and Loan Agreement (d) collectively, the “Notes and BPLA Guarantees”), and additional Guarantees of Debt under any Hedging Transactionsof the US Borrower on terms and conditions no more restrictive on the Borrowers and their Subsidiaries taken as a whole than the terms and conditions of the Notes and PBLA Guarantees, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only in each case solely to the extent permitted under Section 8.7 hereof;
(g) such Guarantees shall be unsecured and either junior in right of payment to the Comerica Debt Loans and other obligations hereunder or pari passu to the Subordinated Debt;
(h) Debt arising under the Surety AgreementsLoans and other obligations hereunder, provided that the Borrowers shall promptly terminate provide the Liberty Mutual Indemnity Agreement Administrative Agent with a copy of any documentation evidencing such Guarantees and any modification to such Guarantees; or
(b) create, incur, assume, permit or suffer to exist any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);Debt, except:
(i) Debt of any Borrower or any Subsidiary (other than a Significant Subsidiary) owing to any Borrower or any Subsidiary;
(ii) other Debt of any Borrower or Subsidiaries (other than Significant Subsidiaries), so long as Priority Debt at no time exceeds twenty percent (20%) of Consolidated Total Tangible Assets; provided that (x) so long as the Borrowers would be in compliance with Sections 5.08 and 5.09 hereof (calculated as of the date of, and after giving effect to, the incurrence of such Debt), Material Subsidiaries may enter into Notes and BPLA Guarantees, and additional Guarantees of Debt of the US Borrower on terms and conditions no more restrictive on the Borrowers and their Subsidiaries taken as a whole than the terms and conditions of the Notes and BPLA Guarantees, in each case solely to the extent such Guarantees shall be unsecured Debt not otherwise described aboveand either junior in right of payment to the Loans and other obligations hereunder or pari passu to the Loans and other obligations hereunder, provided that both at the time Borrowers shall promptly provide the Administrative Agent with a copy of any documentation evidencing such Guarantees and immediately after giving effect any modification to such Guarantees and (y) except as provided in clause (x), the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and basket in this subclause (ii) shall not be used to provide credit enhancements (in any form, including Liens and Guarantees) to the purchasers under the 2004 Note Purchase Agreement or any other private placement issuance of Debt or to the purchasers under the Bond Purchase and Loan Agreement; and
(iii) Receivables Transaction Attributed Debt and/or Debt incurred pursuant to Qualified Receivables Transactions in an aggregate amount of all such Debt shall not to exceed $1,000,000 30,000,000 at any one time outstandingtime.
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto to the Disclosure Letter and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers Borrower or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereofto the Disclosure Letter) shall not exceed $5,000,00010,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Subordinated Debt;
(e) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(ef) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(fg) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(gh) Debt incurred under Seller Notes (including any Seller Notes listed in Schedule 8.1 to the Comerica Debt and Disclosure Letter) not to exceed Thirty Million Dollars ($30,000,000) in the Subordinated Debtaggregate during the term of this Agreement;
(hi) Guaranty Obligations of Indebtedness otherwise permitted hereunder of any Credit Party and Guaranties in the ordinary course of business of the obligations of suppliers, customers and licensees of any Credit Party;
(j) Debt arising under of Foreign Subsidiaries not to exceed $2,500,000 in the Surety Agreementsaggregate;
(k) Debt relating to premium financing arrangements for property and casualty insurance plans and health and welfare benefit plans (including health and workers compensation insurance, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement employment practices liability insurance and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(idirectors and officers insurance);
(il) Debt relating to tenant improvement loans and real estate commissions in an amount not exceeding $2,500,000 in the aggregate;
(m) Debt in respect of performance bonds securing obligations not constituting Debt for borrowed money (including worker’s compensation claims, health benefits and local, state and federal payroll taxes) and obligations in connection with self-insurance or similar requirements, in each case provided in the ordinary course of business;
(n) third-party indebtedness assumed pursuant to a Permitted Acquisition completed in compliance with this Agreement of a type which is permitted under this Agreement (except as a result of giving effect to a Dollar limitation contained in this Section 8.1) in an amount not exceeding $5,000,000 in the aggregate;
(o) non-recourse Debt with a maturity of less than 15 days incurred in connection with a Permitted Acquisition with respect to which an I.R.C. Section 338(h) election has been made; provided that no such Debt shall be permitted following the initial maturity date of such Debt; and
(p) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 10,000,000 at any one time outstanding.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Quinstreet, Inc)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness The Parent Guarantor shall not, and shall not permit any Restricted Subsidiary to, create, issue, Incur, assume, guarantee or in any manner become directly or indirectly liable with respect to or otherwise become responsible for, contingently or otherwise, the payment of any Credit Party (individually and collectively, to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) “Incur” or, as appropriate, an “Incurrence”), any Debt existing on (including any Acquired Debt); provided that the Effective Date and set forth in Schedule 8.1 attached hereto Parent Guarantor, each Issuer and any renewals or refinancing Restricted Subsidiary shall be permitted to Incur Debt (including Acquired Debt) if in each case (i) after giving effect to the Incurrence of such Debt (provided that (i) and the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount application of the original Debt outstanding proceeds thereof, on the Effective Date (less any principal payments a pro forma basis, no Default or Event of Default would occur or be continuing and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred Incurrence and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof Incurrence of such Debt and the application of the proceeds thereof, on a pro forma basis, the Consolidated Fixed Charge Coverage Ratio for the four full fiscal quarters for which financial statements are available immediately preceding the Incurrence of such Debt, taken as one period, would be greater than 2.0 to 1.0.
(b) This covenant shall not, however, prohibit the following (collectively, “Permitted Debt”):
(i) no Default the Notes issued on the Issue Date;
(ii) the Incurrence by the Parent Guarantor or Event any Restricted Subsidiary of Default shall have occurred and be continuing, Debt under Credit Facilities in an aggregate principal amount not to exceed the greater of (i) €350,000,000 and (ii) an amount equal to (I) 85% of Total Receivables plus 60% of Total Inventories less (II) €250,000,000;
(iii) any Debt of the Parent Guarantor or any Restricted Subsidiary (other than Debt described in clauses (i) and (ii) of this paragraph (b)) outstanding on the Issue Date;
(iv) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of intercompany Debt between the Parent Guarantor and any Restricted Subsidiary or between or among Restricted Subsidiaries; provided that:
(A) if an Issuer or a Guarantor is the obligor on any such Debt, unless required by a Credit Facility and only to the extent legally permitted, such Debt must be unsecured (except in respect of the intercompany current liabilities Incurred in the ordinary course of business in connection with the cash management operations of the Parent Guarantor and its Restricted Subsidiaries); and
(B) (x) any disposition, pledge or transfer of any such Debt to a Person (other than a disposition, pledge or transfer to the Parent Guarantor or a Restricted Subsidiary) and (y) any transaction pursuant to which any Restricted Subsidiary that has Debt owing by the Parent Guarantor or another Restricted Subsidiary ceases to be a Restricted Subsidiary, will, in each case, be deemed to be an Incurrence of such Debt not permitted by this clause (iv);
(v) guarantees of the Parent Guarantor’s Debt or Debt of any Restricted Subsidiary by any Restricted Subsidiary that are permitted by and made in accordance with the provisions of Section 4.15;
(vi) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt represented by Capitalized Lease Obligations, mortgage financings, purchase money obligations or other Debt Incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property or assets, in each case, Incurred for the purpose of financing or refinancing all or any part of the purchase price, lease expense or cost of construction or improvement of property, plant, equipment or other assets used in the Parent Guarantor’s or any Restricted Subsidiary’s business (including any reasonable related fees or expenses Incurred in connection with such acquisition or development); provided that the principal amount of such Debt so Incurred when aggregated with other Debt previously Incurred in reliance on this clause (vi) and still outstanding shall not in the aggregate exceed the greater of €100,000,000 and 3.00% of Total Assets; and provided, further, that the total principal amount of all any Debt Incurred in connection with an acquisition or development permitted under this clause (vi) did not in each case at the time of Incurrence exceed (A) the Fair Market Value of the acquired or constructed asset or improvement so financed or (B) in the case of an uncompleted constructed asset, the amount of the asset to be constructed, as determined on the date the contract for construction of such asset was entered into by the Parent Guarantor or the relevant Restricted Subsidiary (including, in each case, any reasonable related fees and expenses Incurred in connection with such acquisition, construction or development);
(vii) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt at any one time outstanding (arising from agreements providing for guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock, other than guarantees or similar credit support given by the Parent Guarantor or any Restricted Subsidiary of Debt Incurred by any Person acquiring all or any portion of such assets for the type described purpose of financing such acquisition; provided that the maximum aggregate liability in respect of all such Debt permitted pursuant to this clause (c) which is set forth on Schedule 8.1 hereofvii) shall not at no time exceed $5,000,000the net proceeds, and any renewals or refinancings including non-cash proceeds (the Fair Market Value of such Debt on terms substantially the same or better than those in effect non-cash proceeds being measured at the time of received and without giving effect to any subsequent changes in value) actually received from the original incurrence sale of such Debtassets;
(dviii) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt under any Commodity Hedging Transactions, provided that such transaction is Agreements entered into for risk management purposes in the ordinary course of business and not for speculative purposes;
(eix) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt under Currency Agreements entered into in the ordinary course of business and not for speculative purposes;
(x) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt under Interest Rate Agreements entered into in the ordinary course of business and not for speculative purposes;
(xi) the Incurrence of Debt by the Parent Guarantor or any Restricted Subsidiary of Debt in respect of workers’ compensation and claims arising under similar legislation, or pursuant to self-insurance obligations and not in connection with the borrowing of money or the obtaining of advances or credit;
(xii) the Incurrence of Debt by the Parent Guarantor or any Restricted Subsidiary arising from judgments (A) the honoring by a bank or decrees other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Debt is extinguished within 5 Business Days of Incurrence, (B) bankers’ acceptances, performance, surety, judgment, completion, payment, appeal or similar bonds, instruments or obligations, (C) completion guarantees, advance payment, customs, VAT or other tax guarantees or similar instruments provided or letters of credit obtained by the Parent Guarantor or any Restricted Subsidiary in the ordinary course of business, and (D) the financing of insurance premiums in the ordinary course of business;
(xiii) any Debt of the Parent Guarantor or any Restricted Subsidiary Incurred pursuant to the GE Commercial Finance Facility or any other Permitted Receivables Financing in an aggregate principal amount at any one time outstanding not to exceed €45,000,000;
(xiv) the Incurrence by a Person of Permitted Refinancing Debt in exchange for or the net proceeds of which are used to refund, replace or refinance Debt Incurred by it pursuant to, or described in, paragraphs (a), (b)(i) and (b)(iii) of this Section 4.06, as the case may be;
(xv) guarantees by the Parent Guarantor or a Restricted Subsidiary of Debt Incurred by Permitted Joint Ventures in an aggregate principal amount at any one time outstanding not to exceed an amount equal to €50,000,000;
(xvi) cash management obligations and Debt in respect of netting services, pooling arrangements or similar arrangements in connection with cash management in the ordinary course of business consistent with past practice;
(xvii) take-or-pay obligations and customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business; and
(xviii) the Incurrence of Debt by the Parent Guarantor or any Restricted Subsidiary (other than and in addition to Debt permitted under clauses (i) through (xvii) above) in an aggregate principal amount at any one time outstanding not to exceed €175,000,000.
(c) Accrual of interest or dividends, the accretion of accreted value, the accretion or amortization of original issue discount and the payment of interest or dividends in the form of additional Debt of the same class will not be deemed to be an Incurrence of Debt for purposes of this Section 4.06.
(d) For purposes of determining compliance with any restriction on the Incurrence of Debt in euros where Debt is denominated in a Default different currency, the amount of such Debt will be the Euro Equivalent determined on the date of such determination; provided that if any such Debt denominated in a different currency is subject to a Currency Agreement (with respect to euros) covering principal amounts payable on such Debt, the amount of such Debt expressed in euros shall be adjusted to take into account the effect of such agreement. The principal amount of any Permitted Refinancing Debt Incurred in the same currency as the Debt being refinanced shall be the Euro Equivalent of the Debt refinanced determined on the date such Debt being refinanced was initially Incurred. Notwithstanding any other provision of this Section 4.06, for purposes of determining compliance with this Section 4.06, increases in Debt solely due to fluctuations in the exchange rates of currencies will not be deemed to exceed the maximum amount that an Issuer, the Parent Guarantor or Event a Subsidiary Guarantor may Incur under this Section 4.06.
(e) For purposes of Default determining any particular amount of Debt under subsection this Section 4.06:
(gi) obligations with respect to letters of credit, guarantees or Liens, in each case supporting Debt otherwise included in the determination of such particular amount shall not be included;
(ii) any Liens granted pursuant to the equal and ratable provisions referred to in Section 9.14.07 shall not be treated as Debt;
(iii) accrual of interest, accrual of dividends, the accretion of accreted value, the obligation to pay commitment fees and the payment of interest in the form of additional preferred stock or Debt shall not be treated as Debt; and
(iv) the reclassification of preferred stock as Debt due to a change in accounting principles shall not be treated as Debt.
(f) In the event that an item of Debt owing meets the criteria of more than one of the types of Debt described in this Section 4.06, the Parent Guarantor, in its sole discretion, shall classify items of Debt and shall only be required to a Person that is a Credit Partyinclude the amount and type of such Debt in one of such clauses and the Parent Guarantor shall be entitled to divide and classify an item of Debt in more than one of the types of Debt described in this Section 4.06, but only and may change the classification of an item of Debt (or any portion thereof) to the extent permitted under any other type of Debt described in this Section 8.7 hereof;4.06 at any time.
(g) the Comerica The amount of any Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and outstanding as of any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);date will be:
(i) additional unsecured in the case of any Debt not otherwise described aboveissued with original issue discount, provided that both at the time amount of and immediately after giving effect to the incurrence liability in respect thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and determined in accordance with IFRS;
(ii) the aggregate principal amount of all the Debt, in the case of any other Debt; and
(iii) in respect of Debt of another Person secured by a Lien on the assets of the specified Person, the lesser of:
(A) the Fair Market Value of such assets at the date of determination; and
(B) the amount of the Debt shall not exceed $1,000,000 at any one time outstandingof the other Person.
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt The Issuers shall not exceed the aggregate principal amount and shall not permit any of the original Debt outstanding on the Effective Date Restricted Subsidiaries to Incur any Indebtedness (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing)including Acquired Indebtedness) if, (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event Incurrence of Default shall have occurred such additional Indebtedness and be continuingthe receipt and application of the proceeds therefrom, and (ii) the aggregate principal amount of all such Debt at any one time outstanding (including, without limitation, any Debt Indebtedness of the type described in this clause Issuers and the Restricted Subsidiaries on a consolidated basis would be greater than 60% of consolidated Adjusted Total Assets of the Issuers and the Restricted Subsidiaries.
(cb) which is set forth on Schedule 8.1 hereof) The Issuers shall not, and shall not exceed $5,000,000, and permit any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
Restricted Subsidiaries to, Incur any Secured Indebtedness (d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person including Acquired Indebtedness that is a Credit PartySecured Indebtedness) if, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof Incurrence of such additional Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Secured Indebtedness of the Issuers and the Restricted Subsidiaries on a consolidated basis would be greater than 45% of consolidated Adjusted Total Assets of the Issuers and the Restricted Subsidiaries.
(c) The Issuers shall not, and shall not permit any of the Restricted Subsidiaries to Incur any Indebtedness (including Acquired Indebtedness); provided, however, that the Issuers or any of the Restricted Subsidiaries may Incur Indebtedness (including Acquired Indebtedness) if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Issuers and the Restricted Subsidiaries on a consolidated basis would be at least 2.0 to 1.0.
(d) Notwithstanding paragraph (a), (b) or (c) above, the Issuers or any of the Restricted Subsidiaries (except as specified below) may Incur each and all of the following:
(1) Indebtedness of the Issuers or any of the Restricted Subsidiaries outstanding under any Credit Facility at any time in an aggregate principal amount not to exceed the greater of (x) $1.750 billion and (y) 40% of consolidated Adjusted Total Assets of the Issuers and the Restricted Subsidiaries; provided, however, that any Permitted Refinancing Indebtedness incurred under clause (13) below in respect of such Indebtedness shall be deemed to have been incurred under this clause (1) for purposes of determining the amount of Indebtedness that may at any time be incurred under this clause (1);
(2) Indebtedness of the Issuers or any of the Restricted Subsidiaries owed to:
(i) no Default any Issuer or Event Subsidiary Guarantor evidenced by an unsubordinated promissory note, or
(ii) any Restricted Subsidiary; provided, however, that if the any Issuer or Guarantor is an obligor and the payee is not an Issuer or a Guarantor, the Indebtedness is subordinated in right of Default payment to the amounts due under the Notes, in the case of an Issuer, or the Note Guarantee, in the case of a Guarantor; provided further that any event that results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary of the Issuers or any subsequent transfer of such Indebtedness (other than to the Issuers or any other Restricted Subsidiary of the Issuers) shall have occurred be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2);
(3) Indebtedness of the Issuers or any of their Restricted Subsidiaries under Currency Agreements and be continuing Interest Rate Agreements; provided that such agreements (i) are designed solely to protect the Issuers or result therefrom any of their Restricted Subsidiaries against fluctuations in foreign currency exchange rates or interest rates (whether fluctuations of fixed to floating rate interest or floating to fixed rate interest) and (ii) do not increase the aggregate Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in foreign currency exchange rates or interest rates or by reason of fees, indemnities and compensation payable thereunder;
(4) Indebtedness of the Issuers or any of the Subsidiary Guarantors, to the extent the net proceeds thereof are promptly:
(i) used to purchase Notes tendered in a Change of Control Offer made as a result of a Change in Control,
(ii) used to redeem all the Notes as described under Article III hereof,
(iii) deposited to defease the Notes as described below under Section 8.2 hereof, or
(iv) deposited to discharge the obligations under the Notes and this Indenture as described under Section 8.1 hereof;
(i) Guarantees of Indebtedness of an Issuer or any Subsidiary Guarantor by any Restricted Subsidiary, provided the guarantee of such Indebtedness is permitted by and made in accordance with Section 4.15 hereof, (ii) Guarantees by a Subsidiary Guarantor of any Indebtedness of an Issuer or any other Subsidiary Guarantor, (iii) Guarantees by an Issuer of Indebtedness of any Subsidiary Guarantor or the other Issuer, and (iv) Guarantees by any Restricted Subsidiary that is not Subsidiary Guarantor (other than Opco) of Indebtedness of any other Restricted Subsidiary that is not a Subsidiary Guarantor (other than Opco);
(6) Indebtedness outstanding on the Issue Date after giving effect to the intended use of proceeds of the Notes (other than Indebtedness outstanding pursuant to clauses (1) and (7) of this paragraph 4.9(d));
(7) Indebtedness represented by the Notes issued on the Issue Date and the related Note Guarantees;
(8) Indebtedness consisting of obligations to pay insurance premiums incurred in the ordinary course of business;
(9) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities, and reinvestment obligations related thereto, entered into in the ordinary course of business;
(10) Indebtedness in respect of (a) workers’ compensation claims, health, disability or other employee benefits, self-insurance obligations, indemnities, bankers’ acceptances, performance, bid, completion and surety bonds or guarantees and similar types of obligations in the ordinary course of business and including statutory obligations or otherwise under applicable law and including Guarantees by the Issuer and their Restricted Subsidiaries of such Indebtedness incurred by the Advisor or the Property Manager for the benefit of the Issuers and their Restricted Subsidiaries (and amounts reimbursed to the Advisor or the Property Manager for such Indebtedness) and (b) deposits and advance payments received in the ordinary course of business;
(11) Indebtedness represented by cash management obligations and other obligations in respect of netting services, automatic clearinghouse arrangements, overdraft protections and similar arrangements in each case in connection with deposit accounts and honoring or drawing of an instrument against insufficient funds and endorsements for deposit;
(12) Indebtedness supported by a letter of credit procured by the Issuers or their Restricted Subsidiaries in a principal amount not in excess of the stated amount of all such Debt shall not exceed $1,000,000 at any one time outstanding.letter of credit and where the underlying Indebtedness would otherwise be permitted;
Appears in 1 contract
Samples: Indenture (Global Net Lease, Inc.)
Limitation on Debt. Create(a) The Issuer shall not, and shall not permit any Restricted Subsidiary to, create, issue, incur, assume assume, guarantee or suffer in any manner become directly or indirectly liable with respect to exist or otherwise become responsible for, contingently or otherwise, the payment of (individually and collectively, to “incur” or, as appropriate, an “incurrence”), any Debt (including any Acquired Debt); provided, excepthowever, that:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount Issuer and any Subsidiary Guarantor (including a Person that becomes a Subsidiary Guarantor upon the incurrence of such renewed or refinanced Debt) shall be permitted to incur Debt shall not exceed (including Acquired Debt) if;
(A) after giving effect to the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing incurrence of such Debt shall and the application of the proceeds thereof, on a pro forma basis, no Default or Event of Default would occur or be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and continuing; and
(iiiB) at the time of such renewal or refinancing incurrence and after giving effect to the incurrence of such Debt and the application of the proceeds thereof, on a pro forma basis, the Consolidated Leverage Ratio for the Issuer and its Restricted Subsidiaries would be less than 5.0 to 1.0; and
(ii) the Issuer and any Subsidiary Guarantor (including a Person that becomes a Subsidiary Guarantor upon the incurrence of such Senior Debt) shall be permitted to incur Senior Debt (including Acquired Debt) if
(A) after giving effect to the incurrence of such Debt and the application of the proceeds thereof, on a pro forma basis, no Default or Event of Default has occurred and is continuing would occur or would result from the renewal or refinancing of such Debt;be continuing; and
(cB) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of such incurrence and immediately after giving effect to the incurrence thereof of such Debt and the application of the proceeds thereof, on a pro forma basis, the Senior Consolidated Leverage Ratio for the Issuer and its Restricted Subsidiaries would be less than 2.0 to 1.0.
(b) This Section 4.06 shall not, however, prohibit the following (collectively, “Permitted Debt”):
(i) no Default the incurrence by the Issuer, any Subsidiary Guarantor or Event any Restricted Subsidiary of Default shall have occurred and be continuing, and (ii) the Debt under Credit Facilities in an aggregate principal amount of all such Debt at any one time outstanding not to exceed €165 million minus (i) the amount of any permanent repayments or prepayments of any such Debt, in each case, with the proceeds of Asset Sales made in accordance with Section 4.11 hereunder (but only to the extent of any corresponding commitment reduction if such Debt is revolving credit borrowings);
(ii) the incurrence by the Issuer of Debt pursuant to the Notes (other than Additional Notes) and the incurrence of Debt by any Subsidiary Guarantor pursuant to its Guarantee;
(iii) any Debt of the Issuer or any Restricted Subsidiary (other than Debt described in another clause of this Section 4.11) outstanding on the Issue Date;
(iv) the incurrence by the Issuer or any Restricted Subsidiary of intercompany Debt between the Issuer and any Restricted Subsidiary or between or among Restricted Subsidiaries; provided that
(A) if the Issuer is the obligor on any such Debt, such Debt is expressly subordinated to the prior payment in full in cash of all obligations with respect to the Notes upon any insolvency event;
(B) if a Subsidiary Guarantor is the obligor on any such Debt, such Debt is expressly subordinated to the prior payment in full in cash of all obligations of such obligor with respect to its Guarantee upon any insolvency event; and
(C) (I) any disposition, pledge or transfer of any such Debt to a Person (other than a disposition, pledge or transfer to the Issuer or a Restricted Subsidiary) and (II) any transaction pursuant to which any Restricted Subsidiary that has Debt owing to the Issuer or another Restricted Subsidiary ceases to be a Restricted Subsidiary, will, in each case, be deemed to be an incurrence of such Debt not permitted by this clause (iv);
(v) guarantees of the Issuer’s Debt or Debt of any Restricted Subsidiary by any Restricted Subsidiary that are permitted by and made in accordance with the provisions of the Section 4.13 hereunder;
(vi) guarantees of the Debt of any Restricted Subsidiary by the Issuer;
(vii) the incurrence by the Issuer or any Restricted Subsidiary of Debt arising from agreements providing for guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock, other than guarantees or similar credit support given by the Issuer or any Restricted Subsidiary of Debt incurred by any Person acquiring all or any portion of such assets for the type described purpose of financing such acquisition; provided that (A) the maximum aggregate liability in respect of all such Debt permitted pursuant to this clause (cvii) which is set forth on Schedule 8.1 hereof) shall not will at no time exceed $5,000,000the gross proceeds, and any renewals or refinancings including non-cash proceeds (the Fair Market Value of such Debt on terms substantially the same or better than those in effect non-cash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received from the sale of such assets and (B) such Debt is not reflected in the balance sheet of the original incurrence Issuer or any Restricted Subsidiary (contingent liabilities referred to in a footnote to financial statements and not otherwise reflected on the balance sheet shall not be deemed to be reflected on such balance sheet for purposes of such Debtthis clause (B));
(dviii) the incurrence by the Issuer or any Restricted Subsidiary of Debt under any Hedging Transactions, provided that such transaction is Currency Agreements not entered into for risk management purposes and not for speculative purposes;
(eix) the incurrence by the Issuer or any Restricted Subsidiary of Debt arising from judgments or decrees under Interest Rate Agreements not deemed to be a Default or Event of Default under subsection (g) of Section 9.1entered into for speculative purposes;
(fx) the incurrence of Debt owing by the Issuer or any Restricted Subsidiary in respect of workers’ compensation and claims arising under similar legislation, or pursuant to a Person that is a Credit Party, but only to self-insurance obligations and not in connection with the extent permitted under Section 8.7 hereofborrowing of money or the obtaining of advances or credit;
(gxi) the Comerica incurrence of Debt and by the Subordinated DebtIssuer or any Restricted Subsidiary arising from (A) the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Debt is extinguished within 5 Business Days of incurrence, (B) bankers’ acceptances, performance, surety, judgment, appeal or similar bonds, instruments or obligations, or (C) completion guarantees provided or letters of credit obtained by the Issuer or any Restricted Subsidiary in the ordinary course of business;
(hxii) the incurrence by the Issuer or any Restricted Subsidiary of Permitted Refinancing Debt arising in exchange for or the net proceeds of which are used to refund, replace or refinance Debt incurred by it pursuant to, or described in, Section 4.06(a), (b)(ii) or (b)(iii), as the case may be; and
(xiii) the incurrence of Debt by the Issuer or any Restricted Subsidiary (other than and in addition to Debt permitted under clauses (i) through (xii) above) in an aggregate principal amount at any one time outstanding not to exceed the Surety Agreementsgreater of €25 million or 5% of the total assets of the Issuer and its Restricted Subsidiaries on a consolidated basis.
(c) For purposes of determining compliance with any restriction on the incurrence of Debt in euros where Debt is denominated in a different currency, the amount of such Debt will be the Euro Equivalent determined on the date of such determination; provided that if any such Debt denominated in a different currency is subject to a Currency Agreement (with respect to euros) covering principal, premium, if any, and interest payable on such Debt, the Borrowers shall promptly terminate amount of such Debt expressed in euros will be adjusted to take into account the Liberty Mutual Indemnity Agreement and effect of such agreement. The principal amount of any Permitted Refinancing Debt incurred in the same currency as the Debt being refinanced will be the Euro Equivalent of the Debt refinanced determined on the date such Debt being refinanced was initially incurred. Notwithstanding any other Bond Documents related thereto following provision of this covenant, for purposes of determining compliance with this Section 4.06, increases in Debt solely due to fluctuations in the completion exchange rates of currencies will not be deemed to exceed the construction projects set forth on Schedule 8.1(i);maximum amount that the Issuer or any Restricted Subsidiary may incur under this Section 4.06.
(d) For purposes of determining any particular amount of Debt under this Section 4.06:
(i) additional unsecured obligations with respect to letters of credit, guarantees or Liens, in each case supporting Debt otherwise included in the determination of such particular amount will not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and included;
(ii) any Liens granted pursuant to the aggregate equal and ratable provisions referred to in Section 4.10 hereunder will not be treated as Debt; and
(iii) accrual of interest, accrual of dividends, the accretion of accreted value, the amortization of original issue discount, the obligation to pay commitment fees and the payment of regularly scheduled interest in the form of additional Debt of the same instrument or dividends on Redeemable Capital Stock or Preferred Stock of non-Guarantor Restricted Subsidiaries paid in additional shares of Redeemable Capital Stock or Preferred Stock, as the case may be, will not be treated as Debt.
(e) In the event that an item of Debt meets the criteria of more than one of the types of Debt described in this Section 4.06, the Issuer, in its sole discretion, will classify items of Debt and will only be required to include the amount and type of all such Debt shall not exceed $1,000,000 in one of such clauses, and the Issuer will be entitled to divide and classify an item of Debt in more than one of the types of Debt described in this Section 4.06, and may change the classification of an item of Debt (or any portion thereof) to any other type of Debt described in this Section 4.06 at any one time outstandingtime; provided that (A) Debt incurred under the Senior Credit Facility on the Acquisition Date shall be deemed to have been incurred pursuant to Section 4.06(b)(i) and (B) Debt incurred pursuant to Section 4.06(b)(i) on the Acquisition Date above may not be reclassified after the Acquisition Date to have been classified as incurred pursuant to Section 4.06(a)(ii) above.
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness The Company shall not, and shall not permit any Restricted Subsidiary to, Issue, directly or indirectly, any Debt; provided, however, that the Company or its Restricted Subsidiaries may Issue Debt if at the date of any Credit Party such Issuance the Cash Flow Leverage Ratio does not exceed 8.75 to Agent and the Lenders under this Agreement and/or the other Loan Documents;1.0.
(b) any Notwithstanding Section 4.03(a), the Company and the Restricted Subsidiaries may Issue the following Debt:
(1) Debt existing on of the Effective Date and set forth in Schedule 8.1 attached hereto Company or Benedek Broadcasting Issued pursuant to the Revolving Credit Facility under the Bank Credit Agreement (including Guarantees thereof and any renewals letters of credit Issued thereunder) or refinancing any other agreement or indenture in a principal amount which, when taken together with the principal amount of such all other Debt Issued pursuant to this clause (provided that 1) and then outstanding, does not exceed the greater of (i) $15,000,000 and (ii) 75% of the book value of the accounts receivable of the Company and the Restricted Subsidiaries determined in accordance with GAAP as of the end of the most recent fiscal quarter prior to the date of determination;
(2) Debt of the Company or Benedek Broadcasting (including any letters of credit Issued thereunder) Issued pursuant to the Bank Credit Agreement (other than the Revolving Credit Facility) or any other agreement or indenture in an aggregate principal amount of such renewed or refinanced Debt shall not exceed which, when taken together with the aggregate principal amount of the original all other Debt outstanding on the Effective Date issued pursuant to this clause (2) and then outstanding, does not exceed (A) $110.8 million less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (iiB) the renewal or refinancing lesser of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, principal repayments of any Debt actually made after the Issue Date (other than any such principal repayments made as a result of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and Refinancing of any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount scheduled principal amortization payments to have been made by then under the terms of all the Bank Credit Agreement (but without giving effect to any changes to such scheduled principal payments after the Issue Date);
(3) Debt owed to and held by the Company or a Wholly Owned Subsidiary; provided, however, that any subsequent Issuance or transfer of any Capital Stock or any other event which results in any such Wholly Owned Subsidiary ceasing to be a Wholly Owned Subsidiary or any subsequent transfer of such Debt (other than to a Wholly Owned Subsidiary) shall be deemed, in each case, to constitute the Issuance of such Debt by the issuer thereof;
(4) the Securities (including any Securities issued in lieu of cash interest payments with respect to the Securities), the Exchangeable Preferred Stock and Refinancing Debt of the Company Issued in respect of (A) any Debt permitted by this clause (4) and (B) any debt relating to the issuance of any Additional Shares pursuant to Section 4.03(a) (including the accretion of any original issue discount associated with Debt permitted by this clause (4) and the increase in liquidation preference with respect to any Debt permitted by this clause (4));
(5) Debt (other than Debt described in clause (1), (2), (3), or (4) of this Section 4.03(b) but including Debt represented by the Company Pledge Agreement) outstanding on the Issue Date, and Refinancing Debt in respect of any Debt permitted by this clause (5) or by the provisions of Section 4.03(a);
(6) Debt or Preferred Stock of a Subsidiary Issued and outstanding on or prior to the date on which such Subsidiary became a Subsidiary or was acquired by the Company (other than Debt or Preferred Stock Issued in connection with, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Subsidiary became a Subsidiary or was acquired by the Company) and Refinancing Debt of such Subsidiary Issued in respect of any Debt of such Subsidiary permitted by this clause (6); provided, however, that after giving effect thereto, except in the case of any Refinancing Debt, the Company or any Restricted Subsidiary could Issue an additional $1.00 of Debt pursuant to Section 4.03(a);
(7) Debt consisting of Guarantees by BLC of Permitted Acquisition Debt; and
(8) Debt of the Company or any Restricted Subsidiary (in addition to the Debt permitted to be Issued pursuant to Section 4.03(a) or in any other clause of this Section 4.03(b)) in an aggregate principal amount on the date of Issuance which, when added to all other Debt Issued pursuant to this clause (8) and then outstanding, shall not exceed $1,000,000 15,000,000.
(c) Notwithstanding Sections 4.03(a) and 4.03(b), the Company shall not Issue any Debt under Section 4.03(b) if the proceeds thereof are used, directly or indirectly, to repay, prepay, redeem, defease, retire, refund or refinance any Subordinated Obligations unless such Debt shall be subordinated to the Securities to at any one time outstandingleast the same extent as such Subordinated Obligations.
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, Incur any Debt unless the Consolidated EBITDA Coverage Ratio at the date of any Credit Party such Incurrence exceeds 2.0 to Agent and the Lenders under this Agreement and/or the other Loan Documents;1.0.
(b) The preceding sentence shall not prohibit the Incurrence of any of the following Debt existing on (collectively, "Permitted Debt"):
(1) Debt Incurred by the Effective Date and set forth in Schedule 8.1 attached hereto Company and any renewals Restricted Subsidiary pursuant to the Credit Agreement or refinancing any other revolving credit facility which, when taken together with all letters of credit and the principal amount of all other outstanding Debt Incurred under this clause (1), does not exceed the greater of $100 million and the sum of:
(A) 65% of the gross book value of the inventory of the Company and its Restricted Subsidiaries; and
(B) 85% of the gross book value of the accounts receivable of the Company and its Restricted Subsidiaries;
(2) Debt of the Company owed to and held by a Wholly Owned Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock that results in such Wholly Owned Subsidiary ceasing to be a Wholly Owned Subsidiary or any transfer of such Debt (provided that other than to a Wholly Owned Subsidiary) shall be deemed, in each case, to constitute the issuance of such Debt by the Company;
(i3) Debt of a Restricted Subsidiary incurred and outstanding on or prior to the date on which such Restricted Subsidiary:
(A) became a Restricted Subsidiary; or
(B) was acquired by the Company (other than Debt issued in connection with, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company);
(4) the aggregate principal amount incurrence by the Company and the Subsidiary Guarantors of such renewed or refinanced Debt shall not exceed represented by the aggregate principal amount Notes and the related Subsidiary Guarantees to be issued on the date of the original this Indenture and the Exchange Notes and the related Subsidiary Guarantees to be issued pursuant to the Registration Rights Agreement;
(5) Debt outstanding on the Effective Issue Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancingother than Debt described in clause (1), (ii2), (3) the renewal or refinancing (4);
(6) Refinancing Debt in respect of such Debt shall be on substantially the same Incurred pursuant to paragraph (a), or better terms as in effect pursuant to clause (4) or (5) or this clause (6);
(7) Hedging Obligations; provided, however, that with respect to Interest Rate Agreements and Currency Agreements (if such Currency Agreements relate to Debt), only to the extent directly related to Debt permitted to be incurred by the Company pursuant to this Indenture; and
(8) Debt in an aggregate principal amount which, together with all other Debt of the Company and the Restricted Subsidiaries then outstanding (other than Debt permitted by clauses (1) through (7) of this paragraph) does not exceed $5.0 million. For purposes of determining compliance with this Section 4.09, in the event that an item of proposed Debt meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (8) above, or is entitled to be Incurred, in whole or in part, pursuant to the first paragraph of this Section 4.09, the Company shall be permitted to classify such item of Debt on the Effective Date, and shall otherwise be date of its incurrence in compliance any manner that complies with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;Section 4.09.
(c) Notwithstanding paragraphs (a) and (b), the Company and its Restricted Subsidiaries shall not Incur any Debt of Borrowers if the proceeds thereof are used, directly or indirectly, to repay, prepay, redeem, defease, retire, refund or refinance any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect Subordinated Obligations unless such Debt will be subordinated to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstandingNotes.
Appears in 1 contract
Samples: Indenture (Sterling Chemical Inc)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness The Parent Guarantor shall not, and shall not permit any Restricted Subsidiary to, create, issue, Incur, assume, guarantee or in any manner become directly or indirectly liable with respect to or otherwise become responsible for, contingently or otherwise, the payment of any Credit Party (individually and collectively, to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) “Incur” or, as appropriate, an “Incurrence”), any Debt existing on (including any Acquired Debt); provided that the Effective Date and set forth in Schedule 8.1 attached hereto Parent Guarantor, each Issuer and any renewals or refinancing Restricted Subsidiary shall be permitted to Incur Debt (including Acquired Debt) if in each case (i) after giving effect to the Incurrence of such Debt (provided that (i) and the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount application of the original Debt outstanding proceeds thereof, on the Effective Date (less any principal payments a pro forma basis, no Default or Event of Default would occur or be continuing and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred Incurrence and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof Incurrence of such Debt and the application of the proceeds thereof, on a pro forma basis, the Consolidated Fixed Charge Coverage Ratio for the four full fiscal quarters for which financial statements are available immediately preceding the Incurrence of such Debt, taken as one period, would be greater than 2.0 to 1.0.
(b) Section 4.06(a) shall not, however, prohibit the following (collectively, “Permitted Debt”):
(i) no Default the Notes issued on the Issue Date;
(ii) the Incurrence by the Parent Guarantor or Event any Restricted Subsidiary of Default shall have occurred and be continuing, Debt under Credit Facilities in an aggregate principal amount not to exceed the greater of (i) €350,000,000 and (ii) an amount equal to (I) 85% of Total Receivables plus 60% of Total Inventories less (II) €250,000,000;
(iii) any Existing Debt of the Parent Guarantor or any Restricted Subsidiary (other than Debt described in clauses (i) and (ii) of this Section 4.06(b));
(iv) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of intercompany Debt between the Parent Guarantor and any Restricted Subsidiary or between or among Restricted Subsidiaries; provided that:
(A) if an Issuer or a Guarantor is the obligor on any such Debt, unless required by a Credit Facility and only to the extent legally permitted, such Debt must be unsecured (except in respect of the intercompany current liabilities Incurred in the ordinary course of business in connection with cash management, cash pooling, tax and accounting operations of the Parent Guarantor and its Restricted Subsidiaries); and
(B) (x) any disposition, pledge or transfer of any such Debt to a Person (other than a disposition, pledge or transfer to the Parent Guarantor or a Restricted Subsidiary) and (y) any transaction pursuant to which any Restricted Subsidiary that has Debt owing by the Parent Guarantor or another Restricted Subsidiary ceases to be a Restricted Subsidiary, will, in each case, be deemed to be an Incurrence of such Debt not permitted by this clause (iv);
(v) guarantees of the Parent Guarantor or any Restricted Subsidiary of Debt of the Parent Guarantor or any Restricted Subsidiary to the extent that the guaranteed Debt was permitted to be incurred by another provision of this Section 4.06;
(vi) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt represented by Capitalized Lease Obligations, mortgage financings, purchase money obligations or other Debt Incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property or assets, in each case, Incurred for the purpose of financing or refinancing all or any part of the purchase price, lease expense or cost of construction or improvement of property, plant, equipment or other assets used in the Parent Guarantor’s or any Restricted Subsidiary’s business (including any reasonable related fees or expenses Incurred in connection with such acquisition or development); provided that the principal amount of such Debt so Incurred when aggregated with other Debt previously Incurred in reliance on this clause (vi) and still outstanding shall not in the aggregate exceed the greater of €150,000,000 and 2.0% of Total Assets; and provided, further, that the total principal amount of all any Debt Incurred in connection with an acquisition or development permitted under this clause (vi) did not in each case at the time of Incurrence exceed (A) the Fair Market Value of the acquired or constructed asset or improvement so financed or (B) in the case of an uncompleted constructed asset, the amount of the asset to be constructed, as determined on the date the contract for construction of such asset was entered into by the Parent Guarantor or the relevant Restricted Subsidiary (including, in each case, any reasonable related fees and expenses Incurred in connection with such acquisition, construction or development);
(vii) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt at any one time outstanding (arising from agreements providing for guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock (other than guarantees or similar credit support given by the Parent Guarantor or any Restricted Subsidiary of Debt Incurred by any Person acquiring all or any portion of such assets for the type described purpose of financing such acquisition); provided that the maximum aggregate liability in respect of all such Debt permitted pursuant to this clause (c) which is set forth on Schedule 8.1 hereofvii) shall not at no time exceed $5,000,000the net proceeds, and any renewals or refinancings including non-cash proceeds (the Fair Market Value of such Debt on terms substantially the same or better than those in effect non-cash proceeds being measured at the time of received and without giving effect to any subsequent changes in value) actually received from the original incurrence sale of such Debtassets;
(dviii) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt under any Commodity Hedging Transactions, provided that such transaction is Agreements entered into for risk management purposes in the ordinary course of business and not for speculative purposes;
(eix) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt arising from judgments or decrees under Currency Agreements entered into in the ordinary course of business and not deemed to be a Default or Event of Default under subsection (g) of Section 9.1for speculative purposes;
(fx) the Incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt owing to a Person that is a Credit Party, but only to under Interest Rate Agreements entered into in the extent permitted under Section 8.7 hereofordinary course of business and not for speculative purposes;
(gxi) the Comerica Incurrence of Debt by the Parent Guarantor or any Restricted Subsidiary of Debt in respect of workers’ compensation and claims arising under similar legislation, or pursuant to self-insurance obligations and not in connection with the Subordinated Debtborrowing of money or the obtaining of advances or credit;
(hxii) the Incurrence of Debt by the Parent Guarantor or any Restricted Subsidiary arising under from (A) the Surety Agreementshonoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Debt is extinguished within five Business Days of Incurrence, (B) bankers’ acceptances, performance, surety, judgment, completion, payment, appeal or similar bonds, instruments or obligations, (C) completion guarantees, advance payment, customs, VAT or other tax guarantees or similar instruments provided or letters of credit obtained by the Borrowers shall promptly terminate Parent Guarantor or any Restricted Subsidiary in the Liberty Mutual Indemnity Agreement ordinary course of business, and (D) the financing of insurance premiums in the ordinary course of business;
(xiii) any other Bond Documents related thereto following the completion Debt of the construction projects set forth on Schedule 8.1(iParent Guarantor or any Restricted Subsidiary Incurred pursuant to any Permitted Receivables Financing;
(xiv) the Incurrence by a Person of Permitted Refinancing Debt in exchange for or the net proceeds of which are used to refund, replace or refinance Debt Incurred by it pursuant to, or described in, Section 4.06(a), sub-clauses (i) and (iii), this sub-clause (xiv) and sub-clauses (xviii), (xix) and (xx) of this Section 4.06(b), as the case may be;
(xv) guarantees by the Parent Guarantor or a Restricted Subsidiary of Debt Incurred by Permitted Joint Ventures in an aggregate principal amount at any one time outstanding not to exceed an amount equal to the greater of €75,000,000 and 1.0% of Total Assets;
(xvi) cash management obligations and Debt in respect of netting services, pooling arrangements or similar arrangements in connection with cash management in the ordinary course of business consistent with past practice;
(i) additional unsecured take-or-pay obligations in the ordinary course of business, (ii) customer deposits and advance payments in the ordinary course of business received from customers for goods or services purchased in the ordinary course of business and (iii) manufacturer, vendor financing, customer and supply arrangements in the ordinary course of business;
(xviii) the Incurrence of Debt by the Parent Guarantor or any Restricted Subsidiary (other than and in addition to Debt permitted under clauses (i) through (xvii) above and clauses (xix) and (xx) below) in an aggregate principal amount at any one time outstanding not to exceed, together with any Permitted Refinancing Debt in respect thereof, the greater of €265,000,000 and 3.5% of Total Assets;
(xix) Debt of any Person (x) Incurred and outstanding on the date on which such Person becomes a Restricted Subsidiary of the Parent Guarantor or another Restricted Subsidiary of the Parent Guarantor or is merged, consolidated, amalgamated or otherwise described abovecombined with (including pursuant to any acquisition of assets and assumption of related liabilities) the Parent Guarantor or any Restricted Subsidiary or (y) Incurred to provide all or any portion of the funds utilized to consummate the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Parent Guarantor or a Restricted Subsidiary; provided, provided however, with respect to each of sub-clause (x) and (y) of this Section 4.06(b)(xix), that both at the time of and immediately such acquisition or other transaction (1) the Parent Guarantor would have been able to Incur €1.00 of additional Indebtedness pursuant to Section 4.06(a) after giving effect to the incurrence thereof Incurrence of such Indebtedness pursuant to this Section 4.06(b)(xix) or (2) the Fixed Charge Coverage Ratio of the Parent Guarantor and its Restricted Subsidiaries would not be less than it was immediately prior to giving pro forma effect to such acquisition or other transaction; and
(xx) Contribution Debt.
(c) Accrual of interest or dividends, the accretion of accreted value, the accretion or amortization of original issue discount and the payment of interest or dividends in the form of additional Debt of the same class will not be deemed to be an Incurrence of Debt for purposes of this Section 4.06.
(d) For purposes of determining compliance with any restriction on the Incurrence of Debt in euros where Debt is denominated in a different currency, the amount of such Debt will be the Euro Equivalent determined on the date of such determination; provided that if any such Debt denominated in a different currency is subject to a Currency Agreement (with respect to euros) covering principal amounts payable on such Debt, the amount of such Debt expressed in euros shall be adjusted to take into account the effect of such agreement. The principal amount of any Permitted Refinancing Debt Incurred in the same currency as the Debt being refinanced shall be the Euro Equivalent of the Debt refinanced determined on the date such Debt being refinanced was initially Incurred. Notwithstanding any other provision of this Section 4.06, for purposes of determining compliance with this Section 4.06, increases in Debt solely due to fluctuations in the exchange rates of currencies will not be deemed to exceed the maximum amount that an Issuer, the Parent Guarantor or a Subsidiary Guarantor may Incur under this Section 4.06.
(e) For purposes of determining any particular amount of Debt under this Section 4.06:
(i) no Default obligations with respect to letters of credit, guarantees or Event Liens, in each case supporting Debt otherwise included in the determination of Default such particular amount shall have occurred not be included;
(ii) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.07 shall not be continuing treated as Debt;
(iii) accrual of interest, accrual of dividends, the accretion of accreted value, the obligation to pay commitment fees and the payment of interest in the form of additional preferred stock or result therefrom Debt shall not be treated as Debt; and
(iv) the reclassification of preferred stock as Debt due to a change in accounting principles shall not be treated as Debt.
(f) In the event that an item of Debt meets the criteria of more than one of the types of Debt described in this Section 4.06, the Parent Guarantor, in its sole discretion, shall classify items of Debt and shall only be required to include the amount and type of such Debt in one of such clauses and the Parent Guarantor shall be entitled to divide and classify an item of Debt in more than one of the types of Debt described in this Section 4.06, and may change the classification of an item of Debt (or any portion thereof) to any other type of Debt described in this Section 4.06 at any time.
(g) The amount of any Debt outstanding as of any date will be:
(i) in the case of any Debt issued with original issue discount, the amount of the liability in respect thereof determined in accordance with IFRS;
(ii) the aggregate principal amount of all the Debt, in the case of any other Debt; and
(iii) in respect of Debt of another Person secured by a Lien on the assets of the specified Person, the lesser of:
(A) the Fair Market Value of such assets at the date of determination; and
(B) the amount of the Debt shall not exceed $1,000,000 at any one time outstandingof the other Person.
Appears in 1 contract
Samples: Indenture (Ardagh Group S.A.)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan DocumentsBank;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 7.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(ed) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.18.1;
(fe) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 7.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(if) additional unsecured Debt and obligations under Capital Leases not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt and Capital Lease obligations shall not exceed $1,000,000 3,500,000 at any one time outstanding; and
(g) Guaranty by a Credit Party of an obligation of another Credit Party to the extent such guaranteed obligation was permitted hereunder.
Appears in 1 contract
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
(b) any Debt existing on the Effective Date and set forth in Schedule 8.1 attached hereto (and not otherwise permitted in this Section 8.1) and any renewals or refinancing of such Debt (Debt, provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, Date and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers such Borrower or any Subsidiary of its Subsidiaries incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease Lease, provided that both at the time of and immediately after giving effect to the Table of Contents incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt of the type described in this clause (c) which is set forth on Schedule 8.1 hereof8.1) shall not exceed $5,000,0001,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) unsecured Subordinated Debt;
(e) Debt incurred pursuant to the Permitted Senior Unsecured Notes and the Permitted Senior Unsecured Note Documents, all to be in form and substance reasonably satisfactory to the Agent and on terms reasonably satisfactory to the Agent;
(f) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(eg) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.19.1(g);
(fh) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i)8.7;
(i) additional [Intentionally Omitted];
(j) unsecured Debt under credit cards for commercial customers (including, without limitation, “commercial credit cards” and purchasing cards) provided by a Lender or an Affiliate of a Lender not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) exceed $5,000,000 in the aggregate amount of all such at any time outstanding; and
(k) any other Debt shall not to exceed $1,000,000 in the aggregate at any one time outstanding.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (RetailMeNot, Inc.)
Limitation on Debt. Create, incur, assume or suffer to exist (a) The Borrower shall not Incur any Debt, except:
(a) Indebtedness including Acquisition Debt, unless after giving effect to the Incurrence of any Credit Party to Agent such Debt and the Lenders under this Agreement and/or receipt and application of the other Loan Documents;proceeds therefrom, the Fixed Charge Ratio of the Borrower would be equal to or greater than 2.0 to 1.
(b) any Debt existing on Notwithstanding the Effective Date foregoing, the Borrower may Incur each and set forth in Schedule 8.1 attached hereto and any renewals or refinancing all of such Debt (provided that the following:
(i) Debt issued in exchange for, or the aggregate proceeds of which are used to Refinance, Debt of the Borrower in an amount (or, if such new Debt provides for an amount less than the principal amount thereof to be due and payable upon a declaration of such renewed or refinanced Debt shall acceleration thereof, with an original issue price) not to exceed the aggregate amount so exchanged or Refinanced (plus accrued interest and fees and expenses related to such exchange or Refinancing), the amount so exchanged or Refinanced being equal to the lesser of (x) the principal amount or involuntary liquidation preference of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on so exchanged or prior to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, Refinanced and (iiiy) if the Debt being exchanged or Refinanced was issued with an original issue discount, the accreted value thereof (as determined in accordance with GAAP) at the time of such renewal Refinancing; provided that such Debt of the Borrower will rank pari passu with or refinancing no Default expressly subordinated in right of payment to the Obligations and the Average Life of the new Debt shall be equal to or Event greater than the Average Life of Default has occurred and is continuing the Debt to be exchanged or would result from the renewal or refinancing of such DebtRefinanced;
(cii) any Debt of Borrowers the Borrower to any of its Subsidiaries and to any Joint Ventures in which the Borrower is a direct or indirect partner, shareholder, member or other participant if such Debt of the Borrower is expressly subordinated in right of payment to the Obligations; provided that any transfer of such Debt by a Subsidiary incurred or a Joint Venture (other than to finance another Subsidiary or Joint Venture) will be deemed to be an Incurrence of Debt unless (x) such Debt has an Average Life which is greater than that of the acquisition of fixed or capital assets, whether pursuant Borrower Indenture Securities and which extends to a loan date later than the then Final Maturity Date or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (iiy) the aggregate amount of all such Debt which has an Average Life which is equal to or less than that of the Borrower Indenture Securities or which extends to, or to a date earlier than, the then Final Maturity Date does not exceed $3 million;
(iii) Debt in an aggregate principal amount not to exceed $10 million at any one time outstanding;
(iv) Debt in respect of Currency Protection Agreements or Interest Rate Protection Agreements; and
(v) Debt outstanding as of the date of this Agreement. For purposes of determining any particular amount of Debt under this subsection 7.2, Guarantees of, or obligations with respect to letters of credit supporting, Debt otherwise included in the determination of such particular amount shall not be included. For purposes of determining compliance with the provisions of this subsection 7.2, in the event that an item of Debt meets the criteria of more than one of the types of Debt described in the above clauses, the Borrower, in its sole discretion, shall classify such item of Debt and only be required to include the amount and type of such Debt in one of such clauses.
(c) Notwithstanding any other provision hereof, including without limitation any other provision of this subsection 7.2, the Borrower shall not Incur any Debt at any time unless (i) no payment or prepayment in respect of principal of such Debt (including, without limitation, any Debt payments in respect 61 67 of any sinking fund) shall be due or can become due (other than as a result of the type described in this clause (cacceleration thereof) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only prior to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom then Final Maturity Date and (ii) the aggregate outstanding principal amount of all Debt Incurred by the Borrower at such Debt time (after giving effect to the Incurrence of such Debt) shall not exceed $1,000,000 at any one time outstanding480,000,000, to the extent such Debt is Incurred in calendar year 1999, or $490,000,000 to the extent such Debt is Incurred in calendar year 2000 or 2001.
Appears in 1 contract
Limitation on Debt. Create, (a) Grant Recipient shall not incur, assume or suffer permit to exist any Debt, except:
indebtedness for borrowed money (a) Indebtedness or act as a guarantor of any Credit Party such indebtedness) whether secured or unsecured before Substantial Completion, or otherwise encumber the assets constituting the Project before Substantial Completion, in each case, without the prior written consent of NYSERDA, such consent not to Agent be unreasonably withheld, provided that no such consent shall be required if the financing agreements under which Grant Recipient incurs or guarantees such indebtedness provide that (i) if the exercise by lender (or any trustee or agent on behalf of such lender) of a remedy thereunder would result in the cessation of the completion of the Project or the foreclosure and sale of the Lenders existing Project, such lender (or such trustee or agent) shall not exercise such remedy without first providing NYSERDA not less than thirty (30) days (which period of time shall be in addition to the cure period provided to Grant Recipient thereunder) in which to cure the applicable default(s) and (ii) in the case of any default under this Agreement and/or such financing agreements, Grant Recipient shall have the right to prepay the outstanding amounts thereunder to cure any such defaults, after which any related lien or other Loan Documents;security interest shall be released.
(b) any Debt existing on In the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided event that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior NYSERDA elects to such renewal or refinancing), (ii) the renewal or refinancing of such Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) at the time of such renewal or refinancing no Default or Event of Default has occurred and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to cure a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt default of the type described in this clause (i) of Section 5.04(a) above, Grant Recipient shall cooperate with NYSERDA so that NYSERDA may use any funds available to it to cure any such default and pursue Substantial Completion.
(c) which is set forth on Schedule 8.1 hereofGrant Recipient further agrees that it shall deliver a copy of documentation governing any indebtedness that complies with Section 5.04(a)(i) and (ii) within three (3) Business Days of execution thereof and shall not exceed $5,000,000, and promptly deliver to NYSERDA copies of any renewals or refinancings notice of such Debt on terms substantially the same or better than those default received by Grant Recipient in effect at the time of the original incurrence of such Debt;connection therewith.
(d) Debt under Grant Recipient agrees to cooperate with NYSERDA to determine how to prevent the exercise of any Hedging Transactions, provided that such transaction is entered into for risk management purposes remedy which may result in termination of the work to complete the Project. XXXXXXX agrees and not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided acknowledges that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion terms of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described above, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstanding.this Section
Appears in 1 contract
Samples: Grant Disbursement Agreement
Limitation on Debt. Create, incur, assume or suffer to exist Neither Borrower nor any Guarantor shall incur any Debt, except:
except for (a) Indebtedness of any Credit Party to Agent and the Lenders under this Agreement and/or the other Loan Documents;
Obligations, (b) any trade payables incurred in the ordinary course of business, (c) the Debt existing described on the Effective Date and set forth Schedule III hereto, (d) Debt in Schedule 8.1 attached hereto and any renewals or refinancing respect of such Debt (provided that (i) the aggregate principal amount of such renewed taxes, assessments, governmental charges or refinanced Debt shall not exceed the aggregate principal amount of the original Debt outstanding on the Effective Date (less any principal payments levies and the amount of any commitment reductions made thereon on or prior to such renewal or refinancing)claims for labor, materials and supplies, (ii) judgments or awards which have been in force for less than the renewal applicable appeal period so long as execution is not levied thereunder or refinancing in respect of which Borrower or Guarantor shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such Debt shall be on substantially the same appeal or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreementreview, and (iii) endorsements made in connection with the deposits of items for credit or collection in the ordinary course of business, (e) capitalized lease obligations related to capital expenditures made by Borrower as permitted by Section 7.19 hereof (and so long as such capitalized lease obligations do not cause Borrower to be in violation of any other covenant of this Agreement), (f) Subordinate Acquisition Debt, (g) Permitted Institutional Debt, provided that, (1) the amount of the Permitted Senior Institutional Debt outstanding at any time cannot exceed the lesser of 70% of the aggregate amount of Permitted Institutional Debt outstanding at the time of such renewal determination or refinancing no Default $17,500,000.00, (2) the amount of Permitted Subordinate Institutional Debt outstanding at any time cannot be less than $7,500,000.00, and (3) the issuance of said Permitted Institutional Debt would otherwise be permitted by the other terms and conditions of the Credit Facility, (h) the Short Term Debt in existence on the date of the execution of this Agreement (Lenders hereby agreeing that (1) Administrative Agent shall be entitled to execute on behalf of Lenders any documents or Event agreements approved by Administrative Agent acknowledging that the Short Term Debt is included in the Obligations and secured by the Collateral, subject, however, to the provisions of Default has occurred Section 9.6 hereof and is continuing or would result from the renewal or refinancing of such Debt;
(c2) any Debt of Borrowers all or any Subsidiary incurred portion of the proceeds of the Permitted Institutional Debt shall be used to finance repay the acquisition of fixed or capital assetsShort Term Debt and then to pay down the Credit Facility), whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default refinancings, renewals or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all such Debt at any one time outstanding (including, without limitation, any Debt extensions of the type described in this clause (c) which is set forth on Schedule 8.1 hereof) shall not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially permitted under the same or better than those in effect at the time of the original incurrence of such Debt;
(d) Debt under any Hedging Transactions, foregoing clauses provided that such transaction is entered into for risk management purposes and refinancings, renewals or extensions do not for speculative purposes;
(e) Debt arising from judgments or decrees not deemed to be a Default or Event of Default under subsection (g) of Section 9.1;
(f) Debt owing to a Person that is a Credit Party, but only to result in an increase in the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion aggregate unpaid principal amount of the construction projects set forth on Schedule 8.1(i);
(i) additional unsecured Debt not otherwise described aboveso refinanced, provided that both at the time of and immediately after giving effect to the incurrence thereof (i) no Default renewed or Event of Default shall have occurred and be continuing or result therefrom and (ii) the aggregate amount of all such Debt shall not exceed $1,000,000 at any one time outstandingextended.
Appears in 1 contract
Samples: Loan Agreement (Monarch Dental Corp)
Limitation on Debt. Create, incur, assume or suffer to exist any Debt, except:
(a) Indebtedness Capitalized terms used in this Section 7.3 and in Section 7.4 but not defined herein shall have the meanings given such terms in the Company's Indenture for the 10-7/8% Senior Discount Notes due 2008 in the form as of any Credit Party to Agent and the Lenders under date of this Agreement and/or (the other Loan Documents;
(b) "Senior Notes Indenture"). So long as at least 50% of the Convertible Stock issued hereunder remains outstanding, the Company will not, and will not permit any Restricted Subsidiary to, Incur any Debt existing on without the Effective Date and set forth in Schedule 8.1 attached hereto and any renewals or refinancing of such Debt (provided that (i) the aggregate principal amount of such renewed or refinanced Debt shall not exceed the aggregate principal amount prior consent of the original holders of a majority of the shares of Convertible Stock outstanding at such time; PROVIDED, HOWEVER, that the Company may Incur Debt outstanding on the Effective Date (less any principal payments and the amount of any commitment reductions made thereon on or prior may permit a Restricted Subsidiary to such renewal or refinancing), (ii) the renewal or refinancing of such Incur Debt shall be on substantially the same or better terms as in effect with respect to such Debt on the Effective Date, and shall otherwise be in compliance with this Agreement, and (iii) if at the time of such renewal or refinancing no Default or Event of Default has occurred Incurrence and is continuing or would result from the renewal or refinancing of such Debt;
(c) any Debt of Borrowers or any Subsidiary incurred to finance the acquisition of fixed or capital assets, whether pursuant to a loan or a Capitalized Lease provided that both at the time of and immediately after giving effect thereto the Consolidated Cash Flow Ratio would be less than 6.5 to 1.0. In making the incurrence thereof foregoing calculation, there shall be excluded from Debt for purposes of calculating the Consolidated Cash Flow Ratio all Debt of the Company and its Restricted Subsidiaries incurred pursuant to clause (i) no Default or Event of Default shall have occurred the definition of Permitted Debt, and pro forma effect will be continuing, given to (i) the Incurrence of the Debt to be incurred and the application of the net proceeds therefrom to refinance other Debt and (ii) the acquisition (whether by purchase, merger or otherwise) or disposition (whether by sale, merger or otherwise) of any company, entity or business acquired or disposed of by the Company or its Restricted Subsidiaries, as the case may be, since the first day of the most recent full fiscal quarter, as if such acquisition or disposition occurred at the beginning of the most recent full fiscal quarter. Notwithstanding the foregoing limitation, the Company may, and may permit its Restricted Subsidiaries to, Incur the following additional Debt ("Permitted Debt"):
(i) Debt under Bank Credit Facilities in an aggregate amount of all such Debt not to exceed $150.0 million at any one time outstanding, less any amounts by which the commitments thereunder are permanently reduced pursuant to the provisions thereof as described under the "Limitation on Certain Asset Sales" covenant in the Company's Senior Notes Indenture;
(ii) other Debt of the Company or any Restricted Subsidiary outstanding on the date of the Senior Notes Indenture and listed on Schedule A thereto;
(iii) Debt owed by the Company to any wholly owned Restricted Subsidiary or owed by any wholly owned Restricted Subsidiary to the Company or any other wholly owned Restricted Subsidiary (provided that such Debt is held by the Company or such wholly owned Restricted Subsidiary);
(iv) Debt represented by the Notes;
(v) Debt Incurred or Incurrable in respect of letters of credit, bankers' acceptances or similar facilities not to exceed $5.0 million at any one time outstanding;
(vi) Capital Lease Obligations whose Attributable Value does not exceed $5.0 million at any one time outstanding;
(vii) Debt of the Company or any Restricted Subsidiary consisting of guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, any shares of Capital Stock;
(viii) Debt of the type described Company or any Restricted Subsidiary (including trade letters of credit) in this clause (c) which is set forth on Schedule 8.1 hereof) shall respect of purchase money obligations, provided that the aggregate amount of such Debt outstanding at any time does not exceed $5,000,000, and any renewals or refinancings of such Debt on terms substantially the same or better than those in effect at the time of the original incurrence of such Debt5.0 million;
(dix) Debt under any Hedging Transactionsarising 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 transaction Debt is entered into for risk management purposes and not for speculative purposes;extinguished within two Business Days of its Incurrence; and
(ex) any renewals, extensions, substitutions, refinancings or replacements (each, for purposes of this clause, a "refinancing") of any outstanding Debt, other than Debt arising from judgments Incurred pursuant to clause (i), (vii) or decrees (ix) of this definition, including any successive refinancings thereof, so long as (A) any such new Debt is in a principal amount that does not deemed exceed the principal amount (or, if such Debt being refinanced provides for an amount less than the principal amount thereof to be due and payable upon a Default or Event declaration of Default under subsection (gacceleration thereof, such lesser amount as of the date of determination) so refinanced, plus the amount of Section 9.1;
(f) Debt owing any premium required to a Person that is a Credit Party, but only be paid in connection with such refinancing pursuant to the extent permitted under Section 8.7 hereof;
(g) the Comerica Debt and the Subordinated Debt;
(h) Debt arising under the Surety Agreements, provided that the Borrowers shall promptly terminate the Liberty Mutual Indemnity Agreement and any other Bond Documents related thereto following the completion terms of the construction projects set forth on Schedule 8.1(i);
Debt refinanced or the amount of any premium reasonably determined by the Company as necessary to accomplish such refinancing by means of a tender offer or privately negotiated repurchase, plus the amount of expenses Incurred by the Company in connection with such refinancing, and (iB) additional unsecured such refinancing Debt does not otherwise described abovehave an Average Life less than the Average Life of the Debt being refinanced and does not have a final scheduled maturity earlier than the final scheduled maturity of the Debt being refinanced, provided that both or permit redemption at the time option of and immediately after giving effect to the incurrence thereof (i) no Default or Event holder earlier than the earliest date of Default shall have occurred and be continuing or result therefrom and (ii) redemption at the aggregate amount option of all such the holder of the Debt shall not exceed $1,000,000 at any one time outstandingbeing refinanced.
Appears in 1 contract
Samples: Stock Purchase Agreement (Arch Communications Group Inc /De/)
