Limitation on Indebtedness of Restricted Subsidiaries. The Borrower shall not permit any Restricted Subsidiary from creating, incurring, assuming or guaranteeing, or otherwise becoming or remaining directly or indirectly liable with respect to any Indebtedness, except: (a) (i) Indebtedness existing on the Closing Date in an aggregate principal amount for all such Indebtedness of less than $25,000,000 and (ii) other Indebtedness existing on the Closing Date and set forth on Schedule 6.1 and, in each case, refinancing of such Indebtedness in a principal amount not in excess of that which is outstanding on the Closing Date (as such principal amount has been permanently reduced following the Closing Date) (plus Refinancing Fees); (b) Indebtedness of any Restricted Subsidiary owing to the Borrower or to any other Restricted Subsidiary; (c) to the extent that such incurrence does not result in the incurrence by any Restricted Subsidiary of any obligation for the payment of borrowed money of others, Indebtedness of any Restricted Subsidiary incurred solely in respect of performance bonds, completion guarantees, standby letters of credit or bankers’ acceptances, letters of credit in order to provide security for workers’ compensation claims, payment obligations in connection with self-insurance or similar requirements, surety and similar bonds, statutory claims of lessors, licensees, contractors, franchisees or customers, bonds securing the performance of judgments or a stay of process in proceedings to enforce a contested liability or in connection with any order or decree in any legal proceeding; provided that such Indebtedness was incurred in the ordinary course of business of such Restricted Subsidiary; (d) so long as no Default or Event of Default has occurred and is continuing or would result therefrom (other than any Default or Event of Default that would be cured by the incurrence thereof) on the date of incurrence thereof, any Restricted Subsidiary may become and remain liable with respect to Indebtedness; provided that, at the time of incurrence, the aggregate principal amount of Indebtedness permitted under this clause (d) shall not exceed $250,000,000 at any one time outstanding; (e) Indebtedness incurred in the ordinary course of business arising from any agreement entered into by any Restricted Subsidiary providing for indemnification, purchase price adjustment or similar obligations, in each case, incurred or assumed in connection with an asset sale; (f) to the extent they constitute Indebtedness, obligations under Hedging Agreements that are incurred (i) with respect to any Indebtedness that is permitted by the terms of this Agreement to be outstanding, (ii) for the purpose of fixing or hedging currency exchange rate risk with respect to any currency exchanges, or (iii) for the purpose of fixing or hedging commodities risk in connection with commodities to which a Restricted Subsidiary has actual exposure and not for speculative purposes; and (g) Indebtedness incurred in connection with a transaction permitted by Section 6.6.
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Samples: Revolving Credit Agreement (Las Vegas Sands Corp), Revolving Credit Agreement (Las Vegas Sands Corp), Revolving Credit Agreement (Las Vegas Sands Corp)
Limitation on Indebtedness of Restricted Subsidiaries. The Borrower shall Company will not permit any Restricted Subsidiary from creatingSubsidiaries, incurring, assuming or guaranteeing, or otherwise becoming or remaining directly or indirectly liable indirectly, to create, incur, assume or suffer to exist any Indebtedness (which for purposes hereof shall include, without duplication, Guarantee Obligations) unless immediately thereafter the aggregate amount of (x) all Indebtedness of Restricted Subsidiaries (excluding (A) any Guarantee Obligations in respect of Indebtedness under the Revolving Credit Facility, the Company’s Floating Rate Notes due 2008, 5.930% Notes due 2016, 6.200% Notes due 2036 or the Notes, (B) the Bridge Loan Facility (and any Guarantee Obligations in respect thereof) and (C) Indebtedness owed to the Company or a Restricted Subsidiary, including any renewal or replacement of any of the obligations under clauses (A), (B) or (C)), (y) the aggregate amount of indebtedness secured by Liens permitted under clause (11) of the definition of “Permitted Liens” contained in the Indenture and (z) the discounted present value of all net rentals payable under leases covered by Section 4.08(a) of the Indenture (and not expressly excluded therefrom) would not exceed the greater of $300 million or 15% of Consolidated Net Worth; provided, however, that, solely, for the purposes of this covenant, Indebtedness shall not include indebtedness incurred in connection with respect to any Indebtedness, except:
(a) (i) Indebtedness existing on overdraft or similar facilities related to settlement, clearing and related activities by a Restricted Subsidiary in the Closing Date in an aggregate principal amount for all such Indebtedness ordinary course of less than $25,000,000 and (ii) other Indebtedness existing on the Closing Date and set forth on Schedule 6.1 andbusiness consistent with past practice, in each case, refinancing of such Indebtedness in a principal amount not in excess of that which is outstanding on the Closing Date (as such principal amount has been permanently reduced following the Closing Date) (plus Refinancing Fees);
(b) Indebtedness of any Restricted Subsidiary owing to the Borrower or to any other Restricted Subsidiary;
Purchased Receivables Financings, (c) to the extent that such incurrence does not result in the incurrence by any Restricted Subsidiary of any obligation for the payment of borrowed money of otherssame constitutes Indebtedness, Indebtedness of any Restricted Subsidiary incurred solely obligations in respect of net capital adjustments and/or earn-out arrangements pursuant to a purchase or acquisition otherwise permitted under the Indenture, (d) obligations under performance bonds, completion guarantees, standby letters surety bonds and letter of credit or bankers’ acceptances, letters of credit in order obligations to provide security for workers’ worker’s compensation claims, payment claims or other statutory obligations and obligations in connection with self-respect of bank overdrafts not more than two days overdue, in each case, incurred in the ordinary course of business, (e) indebtedness owing to insurance or similar requirements, surety and similar bonds, statutory claims of lessors, licensees, contractors, franchisees or customers, bonds securing the performance of judgments or a stay of process in proceedings companies to enforce a contested liability or in connection with any order or decree in any legal proceeding; provided that such Indebtedness was finance insurance premiums incurred in the ordinary course of business of such Restricted Subsidiary;
and (df) so long as no Default or Event of Default has occurred and is continuing or would result therefrom (other than any Default or Event of Default that would be cured by the incurrence thereof) on the date of incurrence thereof, any Restricted Subsidiary may become and remain liable Guarantee Obligations with respect to IndebtednessIndebtedness and other liabilities otherwise permitted under the Indenture; provided thatand provided, further, that any Indebtedness of a Person (i) existing at the time of incurrence, the aggregate principal amount of Indebtedness permitted under this clause (d) shall not exceed $250,000,000 at any one time outstanding;
(e) Indebtedness incurred in the ordinary course of business arising from any agreement entered into by any such Person becomes a Restricted Subsidiary providing for indemnification, purchase price adjustment or similar obligations, in each case, incurred is merged with or into the Company or a Restricted Subsidiary or other entity or (ii) assumed by the Company or a Subsidiary in connection with an asset sale;
(f) to the extent they constitute Indebtednessacquisition of all or a portion of the business of such Person, obligations under Hedging Agreements that are incurred (i) with respect to any Indebtedness that is permitted by the terms of this Agreement shall not be deemed to be outstandingIndebtedness created, (ii) for the purpose of fixing incurred, assumed or hedging currency exchange rate risk with respect to any currency exchanges, or (iii) for the purpose of fixing or hedging commodities risk in connection with commodities to which guaranteed by a Restricted Subsidiary has actual exposure and not or otherwise deemed to be Indebtedness of a Restricted Subsidiary for speculative purposes; and
(g) Indebtedness incurred in connection with a transaction permitted by Section 6.6the purposes of this covenant.
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Limitation on Indebtedness of Restricted Subsidiaries. The Borrower shall Company will not permit any Restricted Subsidiary from creatingSubsidiaries, incurring, assuming or guaranteeing, or otherwise becoming or remaining directly or indirectly liable indirectly, to create, incur, assume or suffer to exist any Indebtedness (which for purposes hereof shall include, without duplication, Guarantee Obligations) unless immediately thereafter the aggregate amount of (x) all Indebtedness of Restricted Subsidiaries (excluding (A) any Guarantee Obligations in respect of Indebtedness under the Revolving Credit Facility or the Notes, and (B) Indebtedness owed to the Company or a Restricted Subsidiary, including any renewal or replacement of any of the obligations under clauses (A) or (B)), (y) the aggregate amount of indebtedness secured by Liens permitted under clause (11) of the definition of “Permitted Liens” contained in the Indenture and (z) the discounted present value of all net rentals payable under leases covered by Section 4.08(a) of the Indenture (and not expressly excluded therefrom) would not exceed the greater of $300 million or 15% of Consolidated Net Worth; provided, however, that, solely, for the purposes of this covenant, Indebtedness shall not include indebtedness incurred in connection with respect to any Indebtedness, except:
(a) (i) Indebtedness existing on overdraft or similar facilities related to settlement, clearing and related activities by a Restricted Subsidiary in the Closing Date in an aggregate principal amount for all such Indebtedness ordinary course of less than $25,000,000 and (ii) other Indebtedness existing on the Closing Date and set forth on Schedule 6.1 andbusiness consistent with past practice, in each case, refinancing of such Indebtedness in a principal amount not in excess of that which is outstanding on the Closing Date (as such principal amount has been permanently reduced following the Closing Date) (plus Refinancing Fees);
(b) Indebtedness of any Restricted Subsidiary owing to the Borrower or to any other Restricted Subsidiary;
Purchased Receivables Financings, (c) to the extent that such incurrence does not result in the incurrence by any Restricted Subsidiary of any obligation for the payment of borrowed money of otherssame constitutes Indebtedness, Indebtedness of any Restricted Subsidiary incurred solely obligations in respect of net capital adjustments and/or earn-out arrangements pursuant to a purchase or acquisition otherwise permitted under the Indenture, (d) obligations under performance bonds, completion guarantees, standby letters surety bonds and letter of credit or bankers’ acceptances, letters of credit in order obligations to provide security for workers’ worker’s compensation claims, payment claims or other statutory obligations and obligations in connection with self-respect of bank overdrafts not more than two days overdue, in each case, incurred in the ordinary course of business, (e) indebtedness owing to insurance or similar requirements, surety and similar bonds, statutory claims of lessors, licensees, contractors, franchisees or customers, bonds securing the performance of judgments or a stay of process in proceedings companies to enforce a contested liability or in connection with any order or decree in any legal proceeding; provided that such Indebtedness was finance insurance premiums incurred in the ordinary course of business of such Restricted Subsidiary;
and (df) so long as no Default or Event of Default has occurred and is continuing or would result therefrom (other than any Default or Event of Default that would be cured by the incurrence thereof) on the date of incurrence thereof, any Restricted Subsidiary may become and remain liable Guarantee Obligations with respect to IndebtednessIndebtedness and other liabilities otherwise permitted under the Indenture; provided thatand provided, further, that any Indebtedness of a Person (i) existing at the time of incurrence, the aggregate principal amount of Indebtedness permitted under this clause (d) shall not exceed $250,000,000 at any one time outstanding;
(e) Indebtedness incurred in the ordinary course of business arising from any agreement entered into by any such Person becomes a Restricted Subsidiary providing for indemnification, purchase price adjustment or similar obligations, in each case, incurred is merged with or into the Company or a Restricted Subsidiary or other entity or (ii) assumed by the Company or a Subsidiary in connection with an asset sale;
(f) to the extent they constitute Indebtednessacquisition of all or a portion of the business of such Person, obligations under Hedging Agreements that are incurred (i) with respect to any Indebtedness that is permitted by the terms of this Agreement shall not be deemed to be outstandingIndebtedness created, (ii) for the purpose of fixing incurred, assumed or hedging currency exchange rate risk with respect to any currency exchanges, or (iii) for the purpose of fixing or hedging commodities risk in connection with commodities to which guaranteed by a Restricted Subsidiary has actual exposure and not or otherwise deemed to be Indebtedness of a Restricted Subsidiary for speculative purposes; and
(g) Indebtedness incurred in connection with a transaction permitted by Section 6.6the purposes of this covenant.
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Limitation on Indebtedness of Restricted Subsidiaries. The Borrower shall not permit Permit any Restricted Subsidiary from creatingto create, incurringincur, assuming assume or guaranteeing, or otherwise becoming or remaining directly or indirectly liable with respect suffer to exist any Indebtedness, except:
(a) (i) Indebtedness existing on the Closing Date in an aggregate principal amount for all such Indebtedness of less than $25,000,000 and (ii) other Indebtedness existing on the Closing Date and set forth on Schedule 6.1 and, in each case, refinancing of such Indebtedness in a principal amount not in excess of that which is outstanding on the Closing Date (as such principal amount has been permanently reduced following the Closing Date) (plus Refinancing Fees)incurred under this Agreement;
(b) Indebtedness of any Restricted Subsidiary owing to the Borrower Company or to any other Restricted Subsidiary;
(c) Indebtedness listed on Schedule 9.2 and any extension, renewal, refinancing, refunding, replacement or restructuring of any such Indebtedness from time to time (in whole or in part), provided that the outstanding principal amount of any such Indebtedness may only be increased to the extent that any such incurrence does increase would not result in the incurrence by any Restricted Subsidiary of any obligation for the payment of borrowed money of others, violate subsection 9.2(q);
(d) Indebtedness of any Person which becomes a Restricted Subsidiary incurred solely after the date hereof, provided that (i) such Indebtedness existed at the time such Person became a Restricted Subsidiary and was not created in anticipation thereof and (ii) immediately after such Person becomes a Restricted Subsidiary no Event of Default shall have occurred and be continuing;
(e) Indebtedness secured by any Lien permitted by subsection 9.3(g) and any extension, renewal, refinancing, refunding, replacement or restructuring of any such Indebtedness from time to time (in whole or in part), provided that the outstanding principal amount of any such Indebtedness may only be increased to the extent any such increase would not violate subsection 9.2(q);
(f) Guarantee Obligations arising in respect of performance bonds, completion guarantees, standby letters guarantees of credit any Indebtedness permitted under this subsection 9.2;
(g) Indebtedness constituting Investments permitted under subsection 9.7;
(h) Indebtedness arising in respect of transactions constituting Sale and Lease-Back Transactions permitted under subsection 9.9;
(i) Subordinated Debt;
(j) Indebtedness incurred or bankers’ acceptances, letters of credit in order to provide security for workers’ compensation claims, payment obligations in connection with self-insurance or similar requirements, surety and similar bonds, statutory claims of lessors, licensees, contractors, franchisees or customers, bonds securing the performance of judgments or a stay of process in proceedings to enforce a contested liability arising from or in connection with any order bid, performance, surety, statutory, completion, return-of-money or decree in any legal proceeding; provided that such Indebtedness was appeal bonds or similar obligations issued, existing or incurred in the ordinary course of business of such Restricted Subsidiarybusiness;
(dk) so long as no Default Indebtedness owed to any officers or Event employees of Default has occurred and is continuing the Company or would result therefrom (other than any Default or Event of Default that would be cured by the incurrence thereof) on the date of incurrence thereof, any Restricted Subsidiary may become and remain liable incurred in connection with respect to Indebtedness; any Permitted Business Acquisition, provided that, at the time of incurrence, that the aggregate principal amount of all such Indebtedness permitted under this clause (d) shall not exceed $250,000,000 5,000,000 at any one time outstanding;
(el) Indebtedness secured by a Lien on any asset or property at the time of acquisition of such asset or property by the Company or any Restricted Subsidiary pursuant to a transaction not prohibited by this Agreement, provided that (i) such Indebtedness existed at the time the asset or property was so acquired and was not created in contemplation of the acquisition thereof and (ii) the outstanding principal amount of such Indebtedness may only be increased to the extent such increase would not violate subsection 9.2(q);
(m) Indebtedness arising or incurred as a result of or from the adjudication or settlement of any litigation or from any arbitration or mediation award or settlement, in any case involving the Company or any Restricted Subsidiary, provided that the judgment, award(s) and/or settlements to which such Indebtedness relates would not constitute an Event of Default under subsection 10(h) of this Credit Agreement;
(n) Indebtedness incurred or arising from or as a result of agreements providing for indemnification, deferred payment obligations, purchase price adjustments, earn-out payments or similar obligations;
(o) Indebtedness arising from or in connection with accounts payable (for the deferred purchase price of property or services) in the ordinary course of business arising from any agreement entered into greater than 90 days past the invoice or billing date which are being contested in good faith by appropriate proceedings and for which adequate reserves shall have been established by the Company or any Restricted Subsidiary providing for indemnification, purchase price adjustment or similar obligations, in each case, incurred or assumed in connection conformity with an asset saleGAAP;
(fp) any extension, renewal, refinancing, refunding, restructuring or replacement (or successive extensions, renewals, refinancings, refundings, restructurings or replacements), in whole or in part, of any Indebtedness referred to in the foregoing clauses (b), (d), (i), (j), (l) and (o); provided that no such extension, renewal, refinancing, refunding, restructuring or replacement shall result in an increase in the principal amount of such Indebtedness (except to the extent they constitute Indebtednessany such increase would not violate subsection 9.2(q)); and
(q) any other Indebtedness (not otherwise permitted under this Agreement), obligations under Hedging Agreements provided that are incurred the aggregate principal amount of all such Indebtedness shall not exceed, in the aggregate (ias to the Company and all Restricted Subsidiaries taken as a whole) 15% of Consolidated Tangible Net Worth calculated, with respect to any date of incurrence of any such Indebtedness, as at the last day of the most recently ended fiscal quarter of the Company immediately preceding such date and any extensions, renewals, refinancings, refundings, restructurings and replacements, in whole or in part, of any such Indebtedness (provided that is permitted by no such extension, renewal, refinancing, refunding, restructuring or replacement shall result in an increase in the terms original principal amount of this Agreement such Indebtedness (except to be outstanding, (ii) for the purpose of fixing or hedging currency exchange rate risk with respect to extent any currency exchanges, or (iii) for the purpose of fixing or hedging commodities risk in connection with commodities to which a Restricted Subsidiary has actual exposure and such increase would not for speculative purposes; and
(g) Indebtedness incurred in connection with a transaction permitted by Section 6.6violate subsection 9.2(q)).
Appears in 1 contract
Samples: Credit Agreement (Harman International Industries Inc /De/)
Limitation on Indebtedness of Restricted Subsidiaries. The Borrower shall Company will not cause or permit any Restricted Subsidiary from creatingto, incurring, assuming or guaranteeing, or otherwise becoming or remaining directly or indirectly liable with respect indirectly, incur, create, assume or permit to exist any Indebtedness, Indebtedness except:
(a) (i) Indebtedness of a Person existing on at the Closing Date in an aggregate principal amount for all time such Person becomes a Subsidiary of the Company (including any Indebtedness of less than $25,000,000 and (ii) other Indebtedness a Person existing on at the Closing Date and set forth on Schedule 6.1 and, in each case, refinancing of time such Indebtedness in Person is merged with or into or consolidated with a principal amount not in excess of that which is outstanding on the Closing Date (as such principal amount has been permanently reduced following the Closing Date) (plus Refinancing Fees);
(b) Indebtedness of any Restricted Subsidiary owing to the Borrower or to any other Restricted Subsidiary;
(c) to the extent that such incurrence does not result in the incurrence by any Restricted Subsidiary of any obligation for the payment Company, or at the time of borrowed money a sale, lease or other disposition of others, Indebtedness all or substantially all of any Restricted the properties of a Person to a Subsidiary incurred solely in respect of performance bonds, completion guarantees, standby letters of credit or bankers’ acceptances, letters of credit in order to provide security for workers’ compensation claims, payment obligations in connection with self-insurance or similar requirements, surety and similar bonds, statutory claims of lessors, licensees, contractors, franchisees or customers, bonds securing the performance of judgments or a stay of process in proceedings to enforce a contested liability or in connection with any order or decree in any legal proceedingCompany); provided that such Indebtedness was not incurred in the ordinary course of business of connection with, or in anticipation of, such Restricted Subsidiaryevent;
(dii) so long as no Default or Event of Default has occurred and is continuing or would result therefrom (other than any Default or Event of Default that would be cured by Indebtedness owing to the incurrence thereof) on the date of incurrence thereofCompany, any Restricted Subsidiary may become or Worthington Receivables (or any replacement or substitute thereof);
(iii) Indebtedness evidenced by letters of credit not issued or deemed issued hereunder; provided that the aggregate face amount of all such letters of credit shall not exceed $30,000,000 in the aggregate at any time; and
(iv) other Indebtedness of the Restricted Subsidiaries in an aggregate principal amount at any time outstanding not in excess of 10% of Consolidated Net Tangible Assets. It is understood and remain liable with respect agreed that this Section 6.01 shall not prohibit the Permitted Spinoff or any Permitted Spinoff Transaction that involves the incurrence of any Indebtedness by a Restricted Subsidiary in connection with, but prior to, the Permitted Spinoff in an aggregate principal amount outstanding not to Indebtednessexceed $550,000,000 at any time; provided that, at the time of incurrence, the aggregate principal amount of Indebtedness permitted under this clause (d) shall not exceed $250,000,000 at any one time outstanding;
(e) Indebtedness incurred in the ordinary course of business arising from any agreement entered into by any Restricted Subsidiary providing for indemnification, purchase price adjustment or similar obligations, in each case, incurred or assumed in connection with an asset sale;
(f) to the extent they constitute Indebtednessthe Company or any Subsidiary is a borrower or an obligor in respect of such Indebtedness or otherwise has any Guaranty Obligation or provides any credit support in respect thereof, obligations under Hedging Agreements neither the Company nor any of its Subsidiaries that remain following the Permitted Spinoff Transactions (whether or not such transactions are incurred (iconsummated) with shall be obligated on or provide any credit support in respect to any of such Indebtedness following the date that is permitted ten (10) Business Days (or such longer period as approved by the terms of this Agreement to be outstanding, (iiAdministrative Agent and the Required Lenders) for following the purpose of fixing or hedging currency exchange rate risk with respect to any currency exchanges, or (iii) for the purpose of fixing or hedging commodities risk in connection with commodities to which a Restricted Subsidiary has actual exposure and not for speculative purposes; and
(g) Indebtedness incurred in connection with a transaction permitted by Section 6.6incurrence thereof.
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Limitation on Indebtedness of Restricted Subsidiaries. The Borrower shall not permit any Restricted Subsidiary from creating, incurring, assuming or guaranteeing, or otherwise becoming or remaining directly or indirectly liable with respect to any Indebtedness, except:
(a) (i) Indebtedness existing on the Closing Date in an aggregate principal amount for all such Indebtedness of less than $25,000,000 and (ii) other Indebtedness existing on the Closing Date and set forth on Schedule 6.1 and, in each case, refinancing of such Indebtedness in a principal amount not in excess of that which is outstanding on the Closing Date (as such principal amount has been permanently reduced following the Closing Date) (plus Refinancing Fees);
(b) Indebtedness of any Restricted Subsidiary owing to the Borrower or to any other Restricted Subsidiary;
(c) to the extent that such incurrence does not result in the incurrence by any Restricted Subsidiary of any obligation for the payment of borrowed money of others, Indebtedness of any Restricted Subsidiary incurred solely in respect of performance bonds, completion guarantees, standby letters of credit or bankers’ acceptances, letters of credit in order to provide security for workers’ compensation claims, payment obligations in connection with self-insurance or similar requirements, surety and similar bonds, statutory claims of lessors, licensees, contractors, franchisees or customers, bonds securing the performance of judgments or a stay of process in proceedings to enforce a contested liability or in connection with any order or decree in any legal proceeding; provided that such Indebtedness was incurred in the ordinary course of business of such Restricted Subsidiary;
(d) so long as no Default or Event of Default has occurred and is continuing or would result therefrom (other than any Default or Event of Default that would be cured by the incurrence thereof) on the date of incurrence thereof, any Restricted Subsidiary may become and remain liable with respect to Indebtedness; provided that, at the time of incurrence, the aggregate principal amount of Indebtedness permitted under this clause (d) shall not exceed $250,000,000 at any one time outstanding;
(e) Indebtedness incurred in the ordinary course of business arising from any agreement entered into by any Restricted Subsidiary providing for indemnification, purchase price adjustment or similar obligations, in each case, incurred or assumed in connection with an asset sale;
(f) to the extent they constitute Indebtedness, obligations under Hedging Agreements that are incurred (i) with respect to any Indebtedness that is permitted by the terms of this Agreement to be outstanding, (ii) for the purpose of fixing or hedging currency exchange rate risk with respect to any currency exchanges, or (iii) for the purpose of fixing or hedging commodities risk in connection with commodities to which a Restricted Subsidiary has actual exposure and not for speculative purposes; and
(g) Indebtedness incurred in connection with a transaction permitted by Section 6.6.
Appears in 1 contract
Limitation on Indebtedness of Restricted Subsidiaries. The Borrower shall not permit any Restricted Subsidiary from creating, incurring, assuming or guaranteeing, or otherwise becoming or remaining directly or indirectly liable with respect to any Indebtedness, except:
(a) (i) Indebtedness existing on the Closing Date in an aggregate principal amount for all such Indebtedness of less than $25,000,000 and (ii) other Indebtedness existing on the Closing Date and set forth on Schedule 6.1 and, in each case, refinancing amendment, modification, extension, refinancing, renewal or replacement of such Indebtedness in a principal amount not in excess of that which is outstanding on the Closing Date (as such principal amount has been permanently reduced following the Closing Date) (plus Refinancing Fees);
(b) Indebtedness of any Restricted Subsidiary issued and owing to the Borrower or to any other Restricted Subsidiary;
(c) to the extent that such incurrence does not result in the incurrence by any Restricted Subsidiary of any obligation for the payment of borrowed money of others, Indebtedness of any Restricted Subsidiary incurred solely in respect of performance bonds, completion guarantees, standby letters of credit or bankers’ acceptances, letters of credit in order to provide security for workers’ compensation claims, payment obligations in connection with self-insurance or similar requirements, surety and similar bonds, statutory claims of lessors, licensees, contractors, franchisees or customers, bonds securing the performance of judgments or a stay of process in proceedings to enforce a contested liability or in connection with any order or decree in any legal proceeding; provided that such Indebtedness was incurred in the ordinary course of business of such Restricted Subsidiary;
(d) so long as no Default or Event of Default has occurred and is continuing or would result therefrom (other than any Default or Event of Default that would be cured by the incurrence thereof) on the date of incurrence thereof, any Restricted Subsidiary may become and remain liable with respect to Indebtedness; provided that, at the time of incurrence, the aggregate principal amount of Indebtedness permitted under this clause (d) shall not exceed $250,000,000 at any one time outstanding;
(e) Indebtedness incurred in the ordinary course of business arising from any agreement entered into by any Restricted Subsidiary providing for indemnification, purchase price adjustment or similar obligations, in each case, incurred or assumed in connection with an asset sale;
(f) to the extent they constitute Indebtedness, obligations under Hedging Agreements that are incurred (i) with respect to any Indebtedness that is permitted by the terms of this Agreement to be outstanding, (ii) for the purpose of fixing or hedging currency exchange rate risk with respect to any currency exchanges, or (iii) for the purpose of fixing or hedging commodities risk in connection with commodities to which a Restricted Subsidiary has actual exposure and not for speculative purposes; and
(g) Indebtedness incurred in connection with a transaction permitted by Section 6.6.
Appears in 1 contract
Limitation on Indebtedness of Restricted Subsidiaries. The Borrower shall not permit Permit any Restricted Subsidiary from creatingto create, incurringincur, assuming assume or guaranteeing, or otherwise becoming or remaining directly or indirectly liable with respect suffer to exist any Indebtedness, except:
(a) (i) Indebtedness existing on the Closing Date in an aggregate principal amount for all such Indebtedness of less than $25,000,000 and (ii) other Indebtedness existing on the Closing Date and set forth on Schedule 6.1 and, in each case, refinancing of such Indebtedness in a principal amount not in excess of that which is outstanding on the Closing Date (as such principal amount has been permanently reduced following the Closing Date) (plus Refinancing Fees)incurred under this Agreement;
(b) Indebtedness of any Restricted Subsidiary owing to the Borrower Company or to any other Restricted Subsidiary;
(c) Indebtedness outstanding on the Initial Closing Date and listed on Schedule 9.2 and any extension, renewal, refinancing, refunding, replacement or restructuring of any such Indebtedness from time to time (in whole or in part), provided that the outstanding principal amount of any such Indebtedness may only be increased to the extent that any such incurrence does increase would not result in the incurrence by any Restricted Subsidiary of any obligation for the payment of borrowed money of others, violate subsection 9.2(q);
(d) Indebtedness of any Person which becomes a Restricted Subsidiary incurred solely after the Initial Closing Date, provided that (i) such Indebtedness existed at the time such Person became a Restricted Subsidiary and was not created in anticipation thereof and (ii) immediately after such Person becomes a Restricted Subsidiary no Event of Default shall have occurred and be continuing;
(e) Indebtedness secured by any Lien permitted by subsection 9.3(g) and any extension, renewal, refinancing, refunding, replacement or restructuring of any such Indebtedness from time to time (in whole or in part), provided that the outstanding principal amount of any such Indebtedness may only be increased to the extent any such increase would not violate subsection 9.2(q);
(f) Guarantee Obligations arising in respect of performance bonds, completion guarantees, standby letters guarantees of credit any Indebtedness permitted under this subsection 9.2;
(g) Indebtedness constituting Investments permitted under subsection 9.7;
(h) Indebtedness arising in respect of transactions constituting Sale and Lease-Back Transactions permitted under subsection 9.9;
(i) Subordinated Debt;
(j) Indebtedness incurred or bankers’ acceptances, letters of credit in order to provide security for workers’ compensation claims, payment obligations in connection with self-insurance or similar requirements, surety and similar bonds, statutory claims of lessors, licensees, contractors, franchisees or customers, bonds securing the performance of judgments or a stay of process in proceedings to enforce a contested liability arising from or in connection with any order bid, performance, surety, statutory, completion, return-of-money or decree in any legal proceeding; provided that such Indebtedness was appeal bonds or similar obligations issued, existing or incurred in the ordinary course of business of such Restricted Subsidiarybusiness;
(dk) so long as no Default Indebtedness owed to any officers or Event employees of Default has occurred and is continuing the Company or would result therefrom (other than any Default or Event of Default that would be cured by the incurrence thereof) on the date of incurrence thereof, any Restricted Subsidiary may become and remain liable incurred in connection with respect to Indebtedness; any Permitted Business Acquisition, provided that, at the time of incurrence, that the aggregate principal amount of all such Indebtedness permitted under this clause (d) shall not exceed $250,000,000 5,000,000 at any one time outstanding;
(el) Indebtedness secured by a Lien on any asset or property at the time of acquisition of such asset or property by the Company or any Restricted Subsidiary pursuant to a transaction not prohibited by this Agreement, provided that (i) such Indebtedness existed at the time the asset or property was so acquired and was not created in contemplation of the acquisition thereof and (ii) the outstanding principal amount of such Indebtedness may only be increased to the extent such increase would not violate subsection 9.2(q);
(m) Indebtedness arising or incurred as a result of or from the adjudication or settlement of any litigation or from any arbitration or mediation award or settlement, in any case involving the Company or any Restricted Subsidiary, provided that the judgment, award(s) and/or settlements to which such Indebtedness relates would not constitute an Event of Default under subsection 10(h) of this Credit Agreement;
(n) Indebtedness incurred or arising from or as a result of agreements providing for indemnification, deferred payment obligations, purchase price adjustments, earn-out payments or similar obligations;
(o) Indebtedness arising from or in connection with accounts payable (for the deferred purchase price of property or services) in the ordinary course of business arising from any agreement entered into greater than 90 days past the invoice or billing date which are being contested in good faith by appropriate proceedings and for which adequate reserves shall have been established by the Company or any Restricted Subsidiary providing for indemnification, purchase price adjustment or similar obligations, in each case, incurred or assumed in connection conformity with an asset saleGAAP;
(fp) any extension, renewal, refinancing, refunding, restructuring or replacement (or successive extensions, renewals, refinancings, refundings, restructurings or replacements), in whole or in part, of any Indebtedness referred to in the foregoing clauses (b), (d), (i), (j), (l) and (o); provided that no such extension, renewal, refinancing, refunding, restructuring or replacement shall result in an increase in the principal amount of such Indebtedness (except to the extent they constitute Indebtednessany such increase would not violate subsection 9.2(q)); and
(q) any other Indebtedness (not otherwise permitted under this Agreement), obligations under Hedging Agreements provided that are incurred the aggregate principal amount of all such Indebtedness shall not exceed, in the aggregate (ias to the Company and all Restricted Subsidiaries taken as a whole) 15% of Consolidated Tangible Net Worth calculated, with respect to any date of incurrence of any such Indebtedness, as at the last day of the most recently ended fiscal quarter of the Company immediately preceding such date and any extensions, renewals, refinancings, refundings, restructurings and replacements, in whole or in part, of any such Indebtedness (provided that is permitted by no such extension, renewal, refinancing, refunding, restructuring or replacement shall result in an increase in the terms original principal amount of this Agreement such Indebtedness (except to be outstanding, (ii) for the purpose of fixing or hedging currency exchange rate risk with respect to extent any currency exchanges, or (iii) for the purpose of fixing or hedging commodities risk in connection with commodities to which a Restricted Subsidiary has actual exposure and such increase would not for speculative purposes; and
(g) Indebtedness incurred in connection with a transaction permitted by Section 6.6violate subsection 9.2(q)).
Appears in 1 contract
Samples: Credit Agreement (Harman International Industries Inc /De/)
Limitation on Indebtedness of Restricted Subsidiaries. The Borrower shall will not cause or permit any Restricted Subsidiary from creatingto, incurring, assuming or guaranteeing, or otherwise becoming or remaining directly or indirectly liable with respect indirectly, incur, create, assume or permit to exist any Indebtedness, Indebtedness except:
(a) (i) Indebtedness of a Person existing on at the Closing Date in an aggregate principal amount for all time such Person becomes a Subsidiary of the Borrower (including any Indebtedness of less than $25,000,000 and (ii) other Indebtedness a Person existing on at the Closing Date and set forth on Schedule 6.1 and, in each case, refinancing of time such Indebtedness in Person is merged with or into or consolidated with a principal amount not in excess of that which is outstanding on the Closing Date (as such principal amount has been permanently reduced following the Closing Date) (plus Refinancing Fees);
(b) Indebtedness of any Restricted Subsidiary owing to the Borrower or to any other Restricted Subsidiary;
(c) to the extent that such incurrence does not result in the incurrence by any Restricted Subsidiary of any obligation for the payment Borrower, or at the time of borrowed money a sale, lease or other disposition of others, Indebtedness all or substantially all of any Restricted the properties of a Person to a Subsidiary incurred solely in respect of performance bonds, completion guarantees, standby letters of credit or bankers’ acceptances, letters of credit in order to provide security for workers’ compensation claims, payment obligations in connection with self-insurance or similar requirements, surety and similar bonds, statutory claims of lessors, licensees, contractors, franchisees or customers, bonds securing the performance of judgments or a stay of process in proceedings to enforce a contested liability or in connection with any order or decree in any legal proceedingBorrower); provided that such Indebtedness was not incurred in the ordinary course of business of connection with, or in anticipation of, such Restricted Subsidiaryevent;
(dii) so long as no Default or Event of Default has occurred and is continuing or would result therefrom (other than any Default or Event of Default that would be cured by Indebtedness owing to the incurrence thereof) on the date of incurrence thereofBorrower, any Restricted Subsidiary may become or Worthington Receivables Corporation (or any replacement or substitute thereof);
(iii) Indebtedness existing as of the Amendment Effective Date evidenced by Existing Letters of Credit and remain liable with respect other letters of credit issued from time to Indebtednesstime after the Amendment Effective Date for the benefit of the Borrower or any Restricted Subsidiary other than pursuant to Section 2.06 of this Agreement; provided thatthat the sum of (A) the maximum amount which is, or at the any time thereafter may become, available to be drawn under such Existing Letters of incurrence, Credit or other letters of credit then outstanding and (B) the aggregate principal amount of Indebtedness permitted all payments or disbursements not yet reimbursed by the Borrower or any Restricted Subsidiary to the applicable letter of credit issuer in respect of drawings under this clause (d) such Existing Letters of Credit or other letters of credit, shall not exceed $250,000,000 20,000,000 in the aggregate at any one time outstanding;
(e) Indebtedness incurred in the ordinary course of business arising from any agreement entered into by any Restricted Subsidiary providing for indemnification, purchase price adjustment or similar obligations, in each case, incurred or assumed in connection with an asset sale;
(f) to the extent they constitute Indebtedness, obligations under Hedging Agreements that are incurred (i) with respect to any Indebtedness that is permitted by the terms of this Agreement to be outstanding, (ii) for the purpose of fixing or hedging currency exchange rate risk with respect to any currency exchanges, or (iii) for the purpose of fixing or hedging commodities risk in connection with commodities to which a Restricted Subsidiary has actual exposure and not for speculative purposestime; and
(giv) other Indebtedness incurred of the Restricted Subsidiaries in connection with a transaction permitted by Section 6.6an aggregate principal amount at any time outstanding not in excess of 10% of Consolidated Net Tangible Assets.
Appears in 1 contract
Samples: Revolving Credit Agreement (Worthington Industries Inc)
Limitation on Indebtedness of Restricted Subsidiaries. The Borrower shall Company will not permit any Restricted Subsidiary from creatingSubsidiaries, incurring, assuming or guaranteeing, or otherwise becoming or remaining directly or indirectly liable indirectly, to create, incur, assume or suffer to exist any Indebtedness (which for purposes hereof shall include, without duplication, Guarantee Obligations) unless immediately thereafter the aggregate amount of (x) all Indebtedness of Restricted Subsidiaries (excluding (A) any Guarantee Obligations in respect of Indebtedness under the Revolving Credit Facility or the Notes, (B) the Bridge Loan Facility (and any Guarantee Obligations in respect thereof) and (C) Indebtedness owed to the Company or a Restricted Subsidiary, including any renewal or replacement of any of the obligations under clauses (A), (B) or (C)), (y) the aggregate amount of indebtedness secured by Liens permitted under clause (11) of the definition of “Permitted Liens” contained in the Indenture and (z) the discounted present value of all net rentals payable under leases covered by Section 4.08(a) of the Indenture (and not expressly excluded therefrom) would not exceed the greater of $300 million or 15% of Consolidated Net Worth; provided, however, that, solely, for the purposes of this covenant, Indebtedness shall not include indebtedness incurred in connection with respect to any Indebtedness, except:
(a) (i) Indebtedness existing on overdraft or similar facilities related to settlement, clearing and related activities by a Restricted Subsidiary in the Closing Date in an aggregate principal amount for all such Indebtedness ordinary course of less than $25,000,000 and (ii) other Indebtedness existing on the Closing Date and set forth on Schedule 6.1 andbusiness consistent with past practice, in each case, refinancing of such Indebtedness in a principal amount not in excess of that which is outstanding on the Closing Date (as such principal amount has been permanently reduced following the Closing Date) (plus Refinancing Fees);
(b) Indebtedness of any Restricted Subsidiary owing to the Borrower or to any other Restricted Subsidiary;
Purchased Receivables Financings, (c) to the extent that such incurrence does not result in the incurrence by any Restricted Subsidiary of any obligation for the payment of borrowed money of otherssame constitutes Indebtedness, Indebtedness of any Restricted Subsidiary incurred solely obligations in respect of net capital adjustments and/or earn-out arrangements pursuant to a purchase or acquisition otherwise permitted under the Indenture, (d) obligations under performance bonds, completion guarantees, standby letters surety bonds and letter of credit or bankers’ acceptances, letters of credit in order obligations to provide security for workers’ worker’s compensation claims, payment claims or other statutory obligations and obligations in connection with self-respect of bank overdrafts not more than two days overdue, in each case, incurred in the ordinary course of business, (e) indebtedness owing to insurance or similar requirements, surety and similar bonds, statutory claims of lessors, licensees, contractors, franchisees or customers, bonds securing the performance of judgments or a stay of process in proceedings companies to enforce a contested liability or in connection with any order or decree in any legal proceeding; provided that such Indebtedness was finance insurance premiums incurred in the ordinary course of business of such Restricted Subsidiary;
and (df) so long as no Default or Event of Default has occurred and is continuing or would result therefrom (other than any Default or Event of Default that would be cured by the incurrence thereof) on the date of incurrence thereof, any Restricted Subsidiary may become and remain liable Guarantee Obligations with respect to IndebtednessIndebtedness and other liabilities otherwise permitted under the Indenture; provided thatand provided, further, that any Indebtedness of a Person (i) existing at the time of incurrence, the aggregate principal amount of Indebtedness permitted under this clause (d) shall not exceed $250,000,000 at any one time outstanding;
(e) Indebtedness incurred in the ordinary course of business arising from any agreement entered into by any such Person becomes a Restricted Subsidiary providing for indemnification, purchase price adjustment or similar obligations, in each case, incurred is merged with or into the Company or a Restricted Subsidiary or other entity or (ii) assumed by the Company or a Subsidiary in connection with an asset sale;
(f) to the extent they constitute Indebtednessacquisition of all or a portion of the business of such Person, obligations under Hedging Agreements that are incurred (i) with respect to any Indebtedness that is permitted by the terms of this Agreement shall not be deemed to be outstandingIndebtedness created, (ii) for the purpose of fixing incurred, assumed or hedging currency exchange rate risk with respect to any currency exchanges, or (iii) for the purpose of fixing or hedging commodities risk in connection with commodities to which guaranteed by a Restricted Subsidiary has actual exposure and not or otherwise deemed to be Indebtedness of a Restricted Subsidiary for speculative purposes; and
(g) Indebtedness incurred in connection with a transaction permitted by Section 6.6the purposes of this covenant.
Appears in 1 contract
Limitation on Indebtedness of Restricted Subsidiaries. The Borrower shall will not cause or permit any Restricted Subsidiary from creatingto, incurring, assuming or guaranteeing, or otherwise becoming or remaining directly or indirectly liable with respect indirectly, incur, create, assume or permit to exist any Indebtedness, Indebtedness except:
(a) (i) Indebtedness of a Person existing on at the time such Person becomes a Subsidiary of the Borrower (including any Indebtedness of a Person existing at the time such Person is merged with or into or consolidated with a Subsidiary of the Borrower, or at the time of a sale, lease or other disposition of all or substantially all of the properties of a Person to a Subsidiary of the Borrower); PROVIDED, that such Indebtedness was not incurred in connection with, or in anticipation of, such event;
(ii) Indebtedness owing to the Borrower, any Restricted Subsidiary or Worthington Receivables Corporation (or any replacement or substitute thereof);
(iii) Indebtedness existing as of the Closing Date evidenced by Existing Letters of Credit and other letters of credit issued from time to time after the Closing Date for the benefit of the Borrower or any Restricted Subsidiary; PROVIDED, that the sum of (A) the maximum amount which is, or at any time thereafter may become, available to be drawn under such Existing Letters of Credit or other letters of credit then outstanding and (B) the aggregate amount of all payments or disbursements not yet reimbursed by the Borrower or any Restricted Subsidiary to the applicable letter of credit issuer in respect of drawings under such Existing Letters of Credit or other letters of credit, shall not exceed $20,000,000 in the aggregate at any time; and
(iv) other Indebtedness of the Restricted Subsidiaries of the Borrower in an aggregate principal amount for all such Indebtedness of less than $25,000,000 and (ii) other Indebtedness existing on the Closing Date and set forth on Schedule 6.1 and, in each case, refinancing of such Indebtedness in a principal amount at any time outstanding not in excess of that which is outstanding on the Closing Date (as such principal amount has been permanently reduced following the Closing Date) (plus Refinancing Fees);
(b) Indebtedness 10% of any Restricted Subsidiary owing to the Borrower or to any other Restricted Subsidiary;
(c) to the extent that such incurrence does not result in the incurrence by any Restricted Subsidiary of any obligation for the payment of borrowed money of others, Indebtedness of any Restricted Subsidiary incurred solely in respect of performance bonds, completion guarantees, standby letters of credit or bankers’ acceptances, letters of credit in order to provide security for workers’ compensation claims, payment obligations in connection with self-insurance or similar requirements, surety and similar bonds, statutory claims of lessors, licensees, contractors, franchisees or customers, bonds securing the performance of judgments or a stay of process in proceedings to enforce a contested liability or in connection with any order or decree in any legal proceeding; provided that such Indebtedness was incurred in the ordinary course of business of such Restricted Subsidiary;
(d) so long as no Default or Event of Default has occurred and is continuing or would result therefrom (other than any Default or Event of Default that would be cured by the incurrence thereof) on the date of incurrence thereof, any Restricted Subsidiary may become and remain liable with respect to Indebtedness; provided that, at the time of incurrence, the aggregate principal amount of Indebtedness permitted under this clause (d) shall not exceed $250,000,000 at any one time outstanding;
(e) Indebtedness incurred in the ordinary course of business arising from any agreement entered into by any Restricted Subsidiary providing for indemnification, purchase price adjustment or similar obligations, in each case, incurred or assumed in connection with an asset sale;
(f) to the extent they constitute Indebtedness, obligations under Hedging Agreements that are incurred (i) with respect to any Indebtedness that is permitted by the terms of this Agreement to be outstanding, (ii) for the purpose of fixing or hedging currency exchange rate risk with respect to any currency exchanges, or (iii) for the purpose of fixing or hedging commodities risk in connection with commodities to which a Restricted Subsidiary has actual exposure and not for speculative purposes; and
(g) Indebtedness incurred in connection with a transaction permitted by Section 6.6Consolidated Net Tangible Assets.
Appears in 1 contract
Samples: 364 Day Revolving Credit Agreement (Worthington Industries Inc)
Limitation on Indebtedness of Restricted Subsidiaries. The Borrower shall Company will not permit any Restricted Subsidiary from creatingSubsidiaries, incurring, assuming or guaranteeing, or otherwise becoming or remaining directly or indirectly liable indirectly, to create, incur, assume or suffer to exist any Indebtedness (which for purposes hereof shall include, without duplication, Guarantee Obligations) unless immediately thereafter the aggregate amount of (x) all Indebtedness of Restricted Subsidiaries (excluding (A) any Guarantee Obligations in respect of Indebtedness under the Revolving Credit Facility, the Company’s Floating Rate Notes due 2008, 5.400% Notes due 2011, 5.930% Notes due 2016 or the Notes, (B) the Bridge Loan Facility (and any Guarantee Obligations in respect thereof) and (C) Indebtedness owed to the Company or a Restricted Subsidiary, including any renewal or replacement of any of the obligations under clauses (A), (B) or (C)), (y) the aggregate amount of indebtedness secured by Liens permitted under clause (11) of the definition of “Permitted Liens” contained in the Indenture and (z) the discounted present value of all net rentals payable under leases covered by Section 4.08(a) of the Indenture (and not expressly excluded therefrom) would not exceed the greater of $300 million or 15% of Consolidated Net Worth; provided, however, that, solely, for the purposes of this covenant, Indebtedness shall not include indebtedness incurred in connection with respect to any Indebtedness, except:
(a) (i) Indebtedness existing on overdraft or similar facilities related to settlement, clearing and related activities by a Restricted Subsidiary in the Closing Date in an aggregate principal amount for all such Indebtedness ordinary course of less than $25,000,000 and (ii) other Indebtedness existing on the Closing Date and set forth on Schedule 6.1 andbusiness consistent with past practice, in each case, refinancing of such Indebtedness in a principal amount not in excess of that which is outstanding on the Closing Date (as such principal amount has been permanently reduced following the Closing Date) (plus Refinancing Fees);
(b) Indebtedness of any Restricted Subsidiary owing to the Borrower or to any other Restricted Subsidiary;
Purchased Receivables Financings, (c) to the extent that such incurrence does not result in the incurrence by any Restricted Subsidiary of any obligation for the payment of borrowed money of otherssame constitutes Indebtedness, Indebtedness of any Restricted Subsidiary incurred solely obligations in respect of net capital adjustments and/or earn-out arrangements pursuant to a purchase or acquisition otherwise permitted under the Indenture, (d) obligations under performance bonds, completion guarantees, standby letters surety bonds and letter of credit or bankers’ acceptances, letters of credit in order obligations to provide security for workers’ worker’s compensation claims, payment claims or other statutory obligations and obligations in connection with self-respect of bank overdrafts not more than two days overdue, in each case, incurred in the ordinary course of business, (e) indebtedness owing to insurance or similar requirements, surety and similar bonds, statutory claims of lessors, licensees, contractors, franchisees or customers, bonds securing the performance of judgments or a stay of process in proceedings companies to enforce a contested liability or in connection with any order or decree in any legal proceeding; provided that such Indebtedness was finance insurance premiums incurred in the ordinary course of business of such Restricted Subsidiary;
and (df) so long as no Default or Event of Default has occurred and is continuing or would result therefrom (other than any Default or Event of Default that would be cured by the incurrence thereof) on the date of incurrence thereof, any Restricted Subsidiary may become and remain liable Guarantee Obligations with respect to IndebtednessIndebtedness and other liabilities otherwise permitted under the Indenture; provided thatand provided, further, that any Indebtedness of a Person (i) existing at the time of incurrence, the aggregate principal amount of Indebtedness permitted under this clause (d) shall not exceed $250,000,000 at any one time outstanding;
(e) Indebtedness incurred in the ordinary course of business arising from any agreement entered into by any such Person becomes a Restricted Subsidiary providing for indemnification, purchase price adjustment or similar obligations, in each case, incurred is merged with or into the Company or a Restricted Subsidiary or other entity or (ii) assumed by the Company or a Subsidiary in connection with an asset sale;
(f) to the extent they constitute Indebtednessacquisition of all or a portion of the business of such Person, obligations under Hedging Agreements that are incurred (i) with respect to any Indebtedness that is permitted by the terms of this Agreement shall not be deemed to be outstandingIndebtedness created, (ii) for the purpose of fixing incurred, assumed or hedging currency exchange rate risk with respect to any currency exchanges, or (iii) for the purpose of fixing or hedging commodities risk in connection with commodities to which guaranteed by a Restricted Subsidiary has actual exposure and not or otherwise deemed to be Indebtedness of a Restricted Subsidiary for speculative purposes; and
(g) Indebtedness incurred in connection with a transaction permitted by Section 6.6the purposes of this covenant.
Appears in 1 contract
Limitation on Indebtedness of Restricted Subsidiaries. The Borrower shall will not cause or permit any Restricted Subsidiary from creatingto, incurring, assuming or guaranteeing, or otherwise becoming or remaining directly or indirectly liable with respect indirectly, incur, create, assume or permit to exist any Indebtedness, Indebtedness except:
(a) (i) Indebtedness of a Person existing on at the time such Person becomes a Subsidiary of the Borrower (including any Indebtedness of a Person existing at the time such Person is merged with or into or consolidated with a Subsidiary of the Borrower, or at the time of a sale, lease or other disposition of all or substantially all of the properties of a Person to a Subsidiary of the Borrower); PROVIDED, that such Indebtedness was not incurred in connection with, or in anticipation of, such event;
(ii) Indebtedness owing to the Borrower, any Restricted Subsidiary or Worthington Receivables Corporation (or any replacement or substitute thereof);
(iii) Indebtedness existing as of the Closing Date evidenced by Existing Letters of Credit and other letters of credit issued from time to time after the Closing Date for the benefit of the Borrower or any Restricted Subsidiary other than pursuant to SECTION 2.06 of this Agreement; PROVIDED, that the sum of (A) the maximum amount which is, or at any time thereafter may become, available to be drawn under such Existing Letters of Credit or other letters of credit then outstanding and (B) the aggregate amount of all payments or disbursements not yet reimbursed by the Borrower or any Restricted Subsidiary to the applicable letter of credit issuer in respect of drawings under such Existing Letters of Credit or other letters of credit, shall not exceed $20,000,000 in the aggregate at any time; and
(iv) other Indebtedness of the Restricted Subsidiaries of the Borrower in an aggregate principal amount for all such Indebtedness of less than $25,000,000 and (ii) other Indebtedness existing on the Closing Date and set forth on Schedule 6.1 and, in each case, refinancing of such Indebtedness in a principal amount at any time outstanding not in excess of that which is outstanding on the Closing Date (as such principal amount has been permanently reduced following the Closing Date) (plus Refinancing Fees);
(b) Indebtedness 10% of any Restricted Subsidiary owing to the Borrower or to any other Restricted Subsidiary;
(c) to the extent that such incurrence does not result in the incurrence by any Restricted Subsidiary of any obligation for the payment of borrowed money of others, Indebtedness of any Restricted Subsidiary incurred solely in respect of performance bonds, completion guarantees, standby letters of credit or bankers’ acceptances, letters of credit in order to provide security for workers’ compensation claims, payment obligations in connection with self-insurance or similar requirements, surety and similar bonds, statutory claims of lessors, licensees, contractors, franchisees or customers, bonds securing the performance of judgments or a stay of process in proceedings to enforce a contested liability or in connection with any order or decree in any legal proceeding; provided that such Indebtedness was incurred in the ordinary course of business of such Restricted Subsidiary;
(d) so long as no Default or Event of Default has occurred and is continuing or would result therefrom (other than any Default or Event of Default that would be cured by the incurrence thereof) on the date of incurrence thereof, any Restricted Subsidiary may become and remain liable with respect to Indebtedness; provided that, at the time of incurrence, the aggregate principal amount of Indebtedness permitted under this clause (d) shall not exceed $250,000,000 at any one time outstanding;
(e) Indebtedness incurred in the ordinary course of business arising from any agreement entered into by any Restricted Subsidiary providing for indemnification, purchase price adjustment or similar obligations, in each case, incurred or assumed in connection with an asset sale;
(f) to the extent they constitute Indebtedness, obligations under Hedging Agreements that are incurred (i) with respect to any Indebtedness that is permitted by the terms of this Agreement to be outstanding, (ii) for the purpose of fixing or hedging currency exchange rate risk with respect to any currency exchanges, or (iii) for the purpose of fixing or hedging commodities risk in connection with commodities to which a Restricted Subsidiary has actual exposure and not for speculative purposes; and
(g) Indebtedness incurred in connection with a transaction permitted by Section 6.6Consolidated Net Tangible Assets.
Appears in 1 contract
Samples: Revolving Credit Agreement (Worthington Industries Inc)
Limitation on Indebtedness of Restricted Subsidiaries. The Borrower shall will not, and will not cause or permit any Restricted Subsidiary from creatingto, incurring, assuming or guaranteeing, or otherwise becoming or remaining directly or indirectly liable with respect indirectly, incur, create, assume or permit to exist any Indebtedness, Indebtedness except:
(a) (i) Indebtedness of a Person existing on at the Closing Date in an aggregate principal amount for all time such Person becomes a Subsidiary of the Borrower (including any Indebtedness of less than $25,000,000 and (ii) other Indebtedness a Person existing on at the Closing Date and set forth on Schedule 6.1 and, in each case, refinancing of time such Indebtedness in Person is merged with or into or consolidated with a principal amount not in excess of that which is outstanding on the Closing Date (as such principal amount has been permanently reduced following the Closing Date) (plus Refinancing Fees);
(b) Indebtedness of any Restricted Subsidiary owing to the Borrower or to any other Restricted Subsidiary;
(c) to the extent that such incurrence does not result in the incurrence by any Restricted Subsidiary of any obligation for the payment Borrower, or at the time of borrowed money a sale, lease or other disposition of others, Indebtedness all or substantially all of any Restricted the properties of a Person to a Subsidiary incurred solely in respect of performance bonds, completion guarantees, standby letters of credit or bankers’ acceptances, letters of credit in order to provide security for workers’ compensation claims, payment obligations in connection with self-insurance or similar requirements, surety and similar bonds, statutory claims of lessors, licensees, contractors, franchisees or customers, bonds securing the performance of judgments or a stay of process in proceedings to enforce a contested liability or in connection with any order or decree in any legal proceedingBorrower); provided that such Indebtedness was not incurred in the ordinary course of business of connection with, or in anticipation of, such Restricted Subsidiaryevent;
(dii) so long as no Default or Event of Default has occurred and is continuing or would result therefrom (other than any Default or Event of Default that would be cured by Indebtedness owing to the incurrence thereof) on the date of incurrence thereofBorrower, any Restricted Subsidiary may become or Worthington Receivables Corporation (or any replacement or substitute thereof);
(iii) Indebtedness existing as of the Amendment Effective Date evidenced by Existing Letters of Credit and remain liable with respect other letters of credit issued from time to Indebtednesstime after the Amendment Effective Date for the benefit of the Borrower or any Restricted Subsidiary other than pursuant to Section 2.06 of this Agreement; provided thatthat the sum of (A) the maximum amount which is, or at the any time thereafter may become, available to be drawn under such Existing Letters of incurrence, Credit or other letters of credit then outstanding and (B) the aggregate principal amount of Indebtedness permitted all payments or disbursements not yet reimbursed by the Borrower or any Restricted Subsidiary to the applicable letter of credit issuer in respect of drawings under this clause (d) such Existing Letters of Credit or other letters of credit, shall not exceed $250,000,000 20,000,000 in the aggregate at any one time outstanding;
(e) Indebtedness incurred in the ordinary course of business arising from any agreement entered into by any Restricted Subsidiary providing for indemnification, purchase price adjustment or similar obligations, in each case, incurred or assumed in connection with an asset sale;
(f) to the extent they constitute Indebtedness, obligations under Hedging Agreements that are incurred (i) with respect to any Indebtedness that is permitted by the terms of this Agreement to be outstanding, (ii) for the purpose of fixing or hedging currency exchange rate risk with respect to any currency exchanges, or (iii) for the purpose of fixing or hedging commodities risk in connection with commodities to which a Restricted Subsidiary has actual exposure and not for speculative purposestime; and
(giv) other Indebtedness incurred of the Restricted Subsidiaries in connection with a transaction permitted by Section 6.6an aggregate principal amount at any time outstanding not in excess of 10% of Consolidated Net Tangible Assets.
Appears in 1 contract
Samples: Revolving Credit Agreement (Worthington Industries Inc)
Limitation on Indebtedness of Restricted Subsidiaries. The Borrower shall Company will not permit any Restricted Subsidiary from creatingSubsidiaries, incurring, assuming or guaranteeing, or otherwise becoming or remaining directly or indirectly liable indirectly, to create, incur, assume or suffer to exist any Indebtedness (which for purposes hereof shall include, without duplication, Guarantee Obligations) unless immediately thereafter the aggregate amount of (x) all Indebtedness of Restricted Subsidiaries (excluding (A) any Guarantee Obligations in respect of Indebtedness under the Revolving Credit Facility, the Company’s 5.400% Notes due 2011, 5.930% Notes due 2016, 6.200% Notes due 2036 or the Notes, (B) the Bridge Loan Facility (and any Guarantee Obligations in respect thereof) and (C) Indebtedness owed to the Company or a Restricted Subsidiary, including any renewal or replacement of any of the obligations under clauses (A), (B) or (C)), (y) the aggregate amount of indebtedness secured by Liens permitted under clause (11) of the definition of “Permitted Liens” contained in the Indenture and (z) the discounted present value of all net rentals payable under leases covered by Section 4.08(a) of the Indenture (and not expressly excluded therefrom) would not exceed the greater of $300 million or 15% of Consolidated Net Worth; provided, however, that, solely, for the purposes of this covenant, Indebtedness shall not include indebtedness incurred in connection with respect to any Indebtedness, except:
(a) (i) Indebtedness existing on overdraft or similar facilities related to settlement, clearing and related activities by a Restricted Subsidiary in the Closing Date in an aggregate principal amount for all such Indebtedness ordinary course of less than $25,000,000 and (ii) other Indebtedness existing on the Closing Date and set forth on Schedule 6.1 andbusiness consistent with past practice, in each case, refinancing of such Indebtedness in a principal amount not in excess of that which is outstanding on the Closing Date (as such principal amount has been permanently reduced following the Closing Date) (plus Refinancing Fees);
(b) Indebtedness of any Restricted Subsidiary owing to the Borrower or to any other Restricted Subsidiary;
Purchased Receivables Financings, (c) to the extent that such incurrence does not result in the incurrence by any Restricted Subsidiary of any obligation for the payment of borrowed money of otherssame constitutes Indebtedness, Indebtedness of any Restricted Subsidiary incurred solely obligations in respect of net capital adjustments and/or earn-out arrangements pursuant to a purchase or acquisition otherwise permitted under the Indenture, (d) obligations under performance bonds, completion guarantees, standby letters surety bonds and letter of credit or bankers’ acceptances, letters of credit in order obligations to provide security for workers’ worker’s compensation claims, payment claims or other statutory obligations and obligations in connection with self-respect of bank overdrafts not more than two days overdue, in each case, incurred in the ordinary course of business, (e) indebtedness owing to insurance or similar requirements, surety and similar bonds, statutory claims of lessors, licensees, contractors, franchisees or customers, bonds securing the performance of judgments or a stay of process in proceedings companies to enforce a contested liability or in connection with any order or decree in any legal proceeding; provided that such Indebtedness was finance insurance premiums incurred in the ordinary course of business of such Restricted Subsidiary;
and (df) so long as no Default or Event of Default has occurred and is continuing or would result therefrom (other than any Default or Event of Default that would be cured by the incurrence thereof) on the date of incurrence thereof, any Restricted Subsidiary may become and remain liable Guarantee Obligations with respect to IndebtednessIndebtedness and other liabilities otherwise permitted under the Indenture; provided thatand provided, further, that any Indebtedness of a Person (i) existing at the time of incurrence, the aggregate principal amount of Indebtedness permitted under this clause (d) shall not exceed $250,000,000 at any one time outstanding;
(e) Indebtedness incurred in the ordinary course of business arising from any agreement entered into by any such Person becomes a Restricted Subsidiary providing for indemnification, purchase price adjustment or similar obligations, in each case, incurred is merged with or into the Company or a Restricted Subsidiary or other entity or (ii) assumed by the Company or a Subsidiary in connection with an asset sale;
(f) to the extent they constitute Indebtednessacquisition of all or a portion of the business of such Person, obligations under Hedging Agreements that are incurred (i) with respect to any Indebtedness that is permitted by the terms of this Agreement shall not be deemed to be outstandingIndebtedness created, (ii) for the purpose of fixing incurred, assumed or hedging currency exchange rate risk with respect to any currency exchanges, or (iii) for the purpose of fixing or hedging commodities risk in connection with commodities to which guaranteed by a Restricted Subsidiary has actual exposure and not or otherwise deemed to be Indebtedness of a Restricted Subsidiary for speculative purposes; and
(g) Indebtedness incurred in connection with a transaction permitted by Section 6.6the purposes of this covenant.
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Limitation on Indebtedness of Restricted Subsidiaries. The Borrower shall Company will not permit any Restricted Subsidiary from creatingto issue, incurring, assuming assume or guaranteeing, or otherwise becoming or remaining directly or indirectly liable with respect to guarantee any Indebtedness, except:
Indebtedness for borrowed money other than (a) (i1) Indebtedness existing on secured by a lien which such Restricted Subsidiary is permitted to create or assume pursuant to Section 4.10 without securing the Closing Date in an aggregate principal amount for all such Securities, (2) Indebtedness of less than $25,000,000 and to the Company or another Restricted Subsidiary, (ii) other Indebtedness existing on the Closing Date and set forth on Schedule 6.1 and, in each case, refinancing of such Indebtedness in a principal amount not in excess of that which is outstanding on the Closing Date (as such principal amount has been permanently reduced following the Closing Date) (plus Refinancing Fees);
(b3) Indebtedness of any Restricted Subsidiary owing to the Borrower or to any other Restricted Subsidiary;
(c) to the extent corporation that such incurrence does not result in the incurrence by any Restricted Subsidiary of any obligation for the payment of borrowed money of others, Indebtedness of any Restricted Subsidiary incurred solely in respect of performance bonds, completion guarantees, standby letters of credit or bankers’ acceptances, letters of credit in order to provide security for workers’ compensation claims, payment obligations in connection with self-insurance or similar requirements, surety and similar bonds, statutory claims of lessors, licensees, contractors, franchisees or customers, bonds securing the performance of judgments or a stay of process in proceedings to enforce a contested liability or in connection with any order or decree in any legal proceeding; provided that such Indebtedness was incurred in the ordinary course of business of such Restricted Subsidiary;
(d) so long as no Default or Event of Default has occurred and is continuing or would result therefrom (other than any Default or Event of Default that would be cured by the incurrence thereof) on the date of incurrence thereof, any Restricted Subsidiary may become and remain liable with respect to Indebtedness; provided that, exists at the time such corporation becomes a Restricted Subsidiary, PROVIDED that, such indebtedness is not incurred in anticipation of incurrencesuch corporation becoming a Restricted Subsidiary, the aggregate principal amount of Indebtedness permitted under this clause (d) shall not exceed $250,000,000 at any one time outstanding;
(e4) Indebtedness incurred in of a corporation that exists at the ordinary course of business arising from any agreement entered time such corporation is merged with or into by any Restricted Subsidiary providing for indemnification, purchase price adjustment or similar obligations, in each case, incurred or assumed in connection consolidated with an asset sale;
(f) to the extent they constitute Indebtedness, obligations under Hedging Agreements that are incurred (i) with respect to any Indebtedness that is permitted by the terms of this Agreement to be outstanding, (ii) for the purpose of fixing or hedging currency exchange rate risk with respect to any currency exchanges, or (iii) for the purpose of fixing or hedging commodities risk in connection with commodities to which a Restricted Subsidiary has actual exposure and or at 52 64 the time of a sale, lease or other disposition of all or substantially all the properties of a corporation to a Restricted Subsidiary, PROVIDED that, such Indebtedness is not for speculative purposes; and
incurred in anticipation of such merger, consolidation or sale, lease or other disposition, (g5) Indebtedness incurred in connection with any industrial development bond financing, (6) Indebtedness incurred by such Restricted Subsidiary in the ordinary course of the business of such Restricted Subsidiary and which matures not more than, and is not renewable or executable at the option of the obligor to a transaction date more than, twelve months after the date such Indebtedness is incurred, and (7) Indebtedness incurred by any Restricted Subsidiary to extend, renew or replace, in whole or in part, any Indebtedness referred to in the foregoing clauses (3) or (4) or Indebtedness of any Restricted Subsidiary existing at the date hereof, PROVIDED that the principal amount of Indebtedness so incurred shall not exceed the principal amount of indebtedness outstanding at the time of such extension, renewal or replacement. Notwithstanding the foregoing, the Company may permit one or more Restricted Subsidiaries to issue, assume or guarantee any Indebtedness for borrowed money which is not secured by a Lien upon any Principal Property or shares of Capital Stock or Indebtedness of any Restricted Subsidiary, PROVIDED that, the aggregate amount of all such Indebtedness permitted by Section 6.6this paragraph (together with all Liens created, assumed or incurred by the Company and its Subsidiaries (as measured by all Indebtedness secured by all such Liens then outstanding or to be so created or assumed) and all Sale/Leaseback Transactions entered into (as measured by the Attributable Indebtedness of all such Sale/Leaseback Transactions then outstanding or to be so entered into)) at any time outstanding shall not exceed 10% of Consolidated Net Tangible Assets.
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Limitation on Indebtedness of Restricted Subsidiaries. The Borrower (a) Following the occurrence of the Termination and Release, the Company shall not permit any Restricted Subsidiary from creatingto Incur any Indebtedness unless, incurringafter giving effect to the Incurrence of such Indebtedness and the application of the net proceeds therefrom, assuming or guaranteeingthe aggregate amount of Indebtedness of all Restricted Subsidiaries plus the aggregate amount of all Indebtedness of the Company secured by a Lien on the Company's assets is not greater than 15% of the Company's Consolidated Tangible Assets. Notwithstanding the foregoing, or otherwise becoming or remaining directly or indirectly liable with respect to any IndebtednessRestricted Subsidiary (other than Palm Shipping, except:
except as provided in clause (av) below) also may Incur each and all of the following: (i) Indebtedness existing on of a Restricted Subsidiary to the Closing Date in an aggregate principal amount for all such Indebtedness of less than $25,000,000 and Company or to any other Wholly Owned Restricted Subsidiary; (ii) other Indebtedness existing on issued in exchange for, or the Closing Date and set forth on Schedule 6.1 andnet proceeds of which are used to refinance or refund, in each case, refinancing of such Indebtedness in a principal amount not in excess of that which is outstanding on the Closing Date (as such principal amount has been permanently reduced following the Closing Date) (plus Refinancing Fees);
(b) Indebtedness of any Restricted Subsidiary owing Subsidiary, other than Indebtedness Incurred under clause (i) or (v) of this paragraph (a) and any refinancings thereof, in an amount not to exceed the principal amount so exchanged, refinanced or refunded (plus premiums, accrued and unpaid interest, fees and expenses thereon); provided that Indebtedness the proceeds of which are used to refinance or refund the Securities or other Indebtedness of the Company that is pari passu with, or subordinated in right of payment to, the Securities shall only be permitted under this clause (iii) if (A) in case the Securities are refinanced in part or the Indebtedness to be refinanced is pari passu with the Securities, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or 70 79 remains outstanding, is expressly made pari passu with, or subordinate in right of payment to, the remaining Securities, (B) in case the Indebtedness to be refinanced is subordinated in right of payment to the Borrower Securities, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to any other Restricted Subsidiary;
(c) which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Securities, at least to the extent that the Indebtedness to be refinanced is subordinated to the Securities and (C) such incurrence new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not result mature prior to the Stated Maturity of the Indebtedness so exchanged, refinanced or refunded and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Indebtedness so exchanged, refinanced or refunded; (iii) Indebtedness (A) in respect of performance, surety or appeal bonds provided in the incurrence ordinary course of business, (B) under Currency Agreements and Interest Rate Agreements; provided that, in the case of Currency Agreements that relate to other Indebtedness, such Currency Agreements do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable thereunder, and (C) arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of any Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary of the Company or of any obligation of its Restricted Subsidiaries and not exceeding the gross proceeds therefrom, other than Guarantees of Indebtedness Incurred by any Person acquiring all or any portion of such business, assets or Restricted Subsidiary of the Company or any of its Restricted Subsidiaries for the payment purpose of borrowed money financing such acquisition; (iv) Acquired Indebtedness; provided that, with respect to this clause (iv), after giving effect to the Incurrence thereof, the Restricted Subsidiaries could Incur at least $1.00 of others, Indebtedness pursuant to the first paragraph of this subsection (a); and (v) Indebtedness of any Restricted Subsidiary incurred solely in respect of performance bonds, completion guarantees, standby letters of credit or bankers’ acceptances, letters of credit in order to provide security for workers’ compensation claims, payment obligations in connection with self-insurance or similar requirements, surety and similar bonds, statutory claims of lessors, licensees, contractors, franchisees or customers, bonds securing the performance of judgments or a stay of process in proceedings to enforce a contested liability or in connection with any order or decree in any legal proceeding; provided that such Indebtedness was incurred Palm Shipping (A) Incurred in the ordinary course of business in connection with the operation of any Vessel in an aggregate principal amount not to exceed $25 million outstanding at any one time or (B) to the Company resulting from advances to Palm Shipping by the Company.
(b) For purposes of determining any particular amount of Indebtedness under this Section 5.03, Guarantees, Liens or obligations with respect to letters of credit supporting Indebtedness otherwise included in the determination of such Restricted Subsidiary;
particular amount shall not be included. For purposes of determining compliance with this Section 5.03, (di) so long as no Default or Event in the event that 71 80 an item of Default has occurred Indebtedness meets the criteria of more than one of the types of Indebtedness described above in this Section, the Company, in its sole discretion, shall classify such item of Indebtedness and only be required to include the amount and type of such Indebtedness in one of such clauses and (ii) the amount of Indebtedness issued at a price that is continuing or would result therefrom (less than the principal amount thereof shall be equal to the amount of the liability in respect thereof determined in conformity with GAAP. Notwithstanding any other than any Default or Event provision of Default this Section 5.03, the maximum amount of Indebtedness that would be cured by the incurrence thereof) on the date of incurrence thereof, any Restricted Subsidiary may become Incur pursuant to this Section 5.03 shall not be deemed to be exceeded due solely to fluctuations in the exchange rates of currencies.
(c) Following the occurrence of the Termination and remain liable with respect to Indebtedness; provided that, at the time of incurrenceRelease, the aggregate principal amount of Indebtedness permitted under this clause (d) shall Company may not exceed $250,000,000 at any one time outstanding;
(e) Indebtedness incurred in the ordinary course of business arising from any agreement entered into by any Restricted Subsidiary providing for indemnification, purchase price adjustment or similar obligations, in each case, incurred or assumed in connection with an asset sale;
(f) to the extent they constitute Indebtedness, obligations under Hedging Agreements that are incurred (i) with respect to incur any Indebtedness that is permitted expressly subordinated to any other Indebtedness of the Company unless such Indebtedness, by its terms or the terms of this Agreement any agreement or instrument pursuant to be which such Indebtedness is issued or remains outstanding, (ii) for is also expressly made subordinate to the purpose of fixing or hedging currency exchange rate risk with respect Securities at least to any currency exchanges, or (iii) for the purpose of fixing or hedging commodities risk in connection with commodities extent that it is subordinated to which a Restricted Subsidiary has actual exposure and not for speculative purposes; and
(g) Indebtedness incurred in connection with a transaction permitted by Section 6.6such other Indebtedness. SECTION 5.04.
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Samples: Indenture (Teekay Shipping Corp)
