Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except: (a) Indebtedness of the Borrower under the Loan Documents; (b) Indebtedness (i) of the Borrower to a Wholly Owned Subsidiary, (ii) of a Domestic Wholly Owned Subsidiary to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent; (c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12; (d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes; (e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof; (f) Indebtedness of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof. (g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding; (h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes; (i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12; (j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and (k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;
Appears in 1 contract
Limitation on Indebtedness. Create, incurIncur, assume or suffer to exist any Indebtedness, Indebtedness of any Material Subsidiary except:
(a) Indebtedness of in existence on the Borrower under Closing Date, or required to be incurred pursuant to a contractual obligation in existence on the Loan DocumentsClosing Date, but not any extensions or renewals thereof, unless effected on substantially the same terms or on terms not materially more adverse to the Lenders;
(b) purchase money Indebtedness (iincluding Capital Leases) of the Borrower to a Wholly Owned Subsidiary, provided that such Indebtedness is secured by Liens permitted by Section 6.3(c);
(iic) of a Domestic Wholly Owned Guaranty Obligations;
(d) Indebtedness owing by any Material Subsidiary to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness of any Material Subsidiary issued and outstanding on prior to the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof;
(f) Indebtedness of a which such Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created of the Borrower (other than Indebtedness issued in connection with, or in anticipation thereof of, such Person becoming a Subsidiary of the Borrower); provided that immediately prior and (y) immediately on a Pro Forma Basis after giving effect to to, such Person becoming a Subsidiary of the acquisition of such corporation by the Borrower Borrower, no Default or Event of Default shall have occurred occur or then be continuing and be continuingthe aggregate principal amount of such Indebtedness, when added to the aggregate outstanding principal amount of Indebtedness permitted by paragraphs (f) and (g) below, shall not exceed the greater of 15% of Consolidated Net Worth and $200,000,000;
(f) any refinancingsrenewal, refundingsextension or modification of Indebtedness under paragraph (e) above so long (i) as such renewal, renewals extension or extensions thereof modification is effected on substantially the same terms or on terms which, in the aggregate, are not increasing materially more adverse to the Lenders and (ii) the principal amount thereof.of such Indebtedness is not increased;
(g) other Indebtedness constituting deposits of any Material Subsidiary in an aggregate principal amount which, when added to secure the performance aggregate outstanding principal amount of bidsIndebtedness permitted by paragraphs (e) and (f) above, trade contracts does not exceed the greater of 15% of Consolidated Net Worth and $200,000,000;
(other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred h) Securitization Indebtedness;
(i) derivatives transactions entered into in the ordinary course of business, business pursuant to hedging programs; and
(j) Indebtedness under the Landal Facilities in an aggregate principal amount not to exceed $5,000,000 in the aggregate at any time outstanding300,000,000;
(hk) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course Trendwest Facilities in an aggregate principal amount not to exceed $400,000,000, provided that the amount of business for hedging purposes and not for speculative purposesIndebtedness permitted under this Section 6.1(k) shall be reduced in an equal amount by the amount of Securitization Indebtedness incurred by Trendwest or any of its Subsidiaries;
(il) Seller Non-Recourse Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) to exceed $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4100,000,000; and
(km) Indebtedness not otherwise permitted by of any Loan Party pursuant to any Fundamental Document. If the foregoing Material Subsidiary’s action or event meets the criteria of more than one of the types of Indebtedness described in the clauses above, the Borrower in its sole discretion may classify such action or event in one or more clauses (a) through (j) including in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;part under one such clause and in part under another such clause).
Appears in 1 contract
Samples: Interim Term Loan Agreement (Wyndham Worldwide Corp)
Limitation on Indebtedness. CreateNeither the Parent Guarantor nor the Borrower shall, nor shall either permit any member of the Parent Guarantor Group (other than AMRC Holdings and Subsidiaries of AMRC Holdings) to, create, incur, assume or assume, guaranty, suffer to exist exist, or otherwise become or remain directly or indirectly liable with respect to, any Indebtedness, exceptexcept for:
(a) Indebtedness accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the Borrower under borrowing of money) incurred in the Loan Documentsordinary course of the Parent Guarantor's, the Borrower's or the Subsidiary's business, as the case may be, in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for in accordance with GAAP;
(b) Indebtedness represented by Rate Contracts;
(c) income taxes payable and deferred taxes;
(d) accrued expenses and deferred income;
(e) Indebtedness under the Senior Notes in an aggregate principal amount not to exceed $335,000,000 and Contingent Obligations of the Borrower's Subsidiaries and of the Parent Guarantor in respect thereof (such Contingent Obligations of the Parent Guarantor to be subordinated as described in the Offering Memorandum);
(f) Indebtedness under the Term Credit Agreement;
(g) Contingent Obligations incurred in connection with any lease financing of mobile communications terminals, not exceeding $5,000,000 in the aggregate in principal amount;
(h) Indebtedness outstanding on the Effective Date and identified on Schedule 5.23;
(i) Indebtedness under the Financial Management Account Line of Credit of the Borrower to a Wholly Owned Subsidiary, (ii) of a Domestic Wholly Owned Subsidiary payable to the Borrower or any other Subsidiaryorder of Wachovia Bank of North Carolina, (iii) of Servicios to the Borrower or any Subsidiary N.A., in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof;
(f) Indebtedness of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.122,500,000;
(j) Indebtedness incurred to finance In-Orbit Insurance in the form of Guarantee Obligations permitted by Section 7.4an aggregate amount outstanding at any time not to exceed $6,000,000;
(k) Vendor Financing Indebtedness in an aggregate amount outstanding at any time not to exceed $10,000,000; and
(kl) any other Indebtedness not otherwise permitted by incurred after the foregoing clauses (a) through (j) in an Effective Date; provided that the aggregate outstanding principal amount of all such Indebtedness shall not at any time outstanding of not to exceed $5,000,000;15,000,000.
Appears in 1 contract
Samples: Revolving Credit Agreement (American Mobile Satellite Corp)
Limitation on Indebtedness. CreateThe Company shall not, and shall not suffer or permit any of its Restricted Subsidiaries to, create, incur, assume or assume, suffer to exist exist, or otherwise become or remain directly or indirectly liable with respect to, any Indebtedness, except:
(a) Indebtedness of the Borrower under Company represented by the Loan DocumentsSenior Notes and any refinancing thereof so long as such refinancing does not increase the principal amount thereof and is on terms no less favorable to the Company, and to the rights of the Administrative Agent and the Banks hereunder, than those contained on the Closing Date in the Senior Notes and the documentation relating thereto;
(b) Indebtedness (i) Funded Debt which is unsecured and is incurred by the Company to finance the making of the Borrower to a Wholly Owned Subsidiarycapital improvements, (ii) of a Domestic Wholly Owned Subsidiary expansions and additions to the Borrower or any other SubsidiaryCompany's property (including Timberlands), (iii) of Servicios to plant and equipment, provided that the Borrower or any Subsidiary in an aggregate outstanding principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount Funded Debt shall at any no time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent50,000,000;
(c) Indebtedness of any Restricted Subsidiary owing to the Borrower Company or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12Restricted Subsidiary;
(d) Indebtedness incurred by the Company pursuant to a bank credit facility which is unsecured or is secured by Liens permitted by subsection 8.1(h), not in excess of an aggregate principal amount of $50,000,000 at any time outstanding, provided that the Borrower and its Subsidiaries under Company shall not suffer to exist any Indebtedness permitted by this subsection (d) on any day unless there shall have been a period of at least 45 consecutive days within the Convertible Subordinated Debentures and 12 months immediately preceding such day during which the 1997 Convertible Subordinated NotesCompany shall have been free from all Indebtedness permitted by this subsection (d);
(e) Indebtedness outstanding on represented by the date hereofGuarantee in an amount not greater than $76,425,000 at any time, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions refinancing thereof so long as such refinancing does not increasing increase the principal amount thereofthereof and is on terms no less favorable to the Company, and to the rights of the Administrative Agent and the Banks hereunder, than those contained on the Closing Date in the Guarantee and the documentation relating thereto;
(f) Indebtedness the Company's guarantee of a Person which becomes a obligations incurred by the Facilities Subsidiary after pursuant to the date hereof in an aggregate principal amount at Facilities Subsidiary's Revolving Credit Facility (and any time outstanding not exceeding extension, renewal, refunding or refinancing thereof permitted by clause (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (iiv) of this Section 7.2 and (Bparagraph 6B(2) of the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12Mortgage Note Agreement), provided that (x) the aggregate outstanding principal amount of such Indebtedness existed shall at the no time exceed $20,000,000, and provided further that such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect guarantee shall be subordinated to the acquisition 1989 Notes by subordination provisions substantially the same as those contained in paragraph 7I of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.Mortgage Note Agreement;
(g) Indebtedness the Company's guarantee of Funded Debt (and related obligations not constituting deposits Indebtedness) incurred by the Facilities Subsidiary to secure finance the performance making of bidscapital improvements, trade contracts (other than for borrowed money)expansions and additions to the Facilities Subsidiaries' Properties pursuant to the Facilities Subsidiary's Facility, leasesprovided that such guarantee shall be subordinated to the 1989 Notes by subordination provisions substantially the same as those contained in paragraph 7I of the Mortgage Note Agreement, statutory obligationsand provided, surety and appeal bonds and performance bonds and other obligations further, that the aggregate outstanding principal amount of a like nature that are incurred in the ordinary course of business, not to such Funded Debt shall at no time exceed $5,000,000 in the aggregate at any time outstanding20,000,000;
(h) Funded Debt of the Company or any Restricted Subsidiary secured by a Lien permitted by subsection 8.1(g), provided that immediately after the acquisition of the Property subject to such Lien or upon which such Lien is placed (or, if later, the incurrence of the Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into secured by such Lien), the ordinary course Company could incur at least $1 of business for hedging purposes and not for speculative purposesadditional Funded Debt pursuant to subsection (i) below;
(i) Seller Indebtedness Funded Debt of the Company (other than Funded Debt owing to a Restricted Subsidiary) in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) addition to that otherwise permitted by the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) foregoing subsections of this Section 7.28.5, and any refinancings, refundings, renewals or extensions thereof not increasing including guarantees of Indebtedness to the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations extent permitted by Section 7.4; and
(k) Indebtedness 8.4 and not otherwise permitted by the foregoing clauses (a) through subsections of this Section 8.5, provided that, on the date the Company becomes liable with respect to any such additional Funded Debt and immediately after giving effect thereto and to the concurrent retirement of any other Funded Debt, the ratio of Pro Forma Free Cash Flow to Maximum Pro Forma Annual Interest Charges is not less than 2.25 to 1.00;
(j) from and after the time that the Facilities Subsidiary becomes a Restricted Subsidiary, Indebtedness incurred by the Facilities Subsidiary pursuant to the Facilities Subsidiary's Revolving Credit Facility (and any extension, renewal, refunding or refinancing thereof, including any refunding or refinancing in an amount in excess of the principal amount then outstanding under the Facilities Subsidiary's Revolving Credit Facility) or any other Indebtedness incurred by the Facilities Subsidiary pursuant to a bank credit facility which is unsecured or is secured by Liens permitted by subsection 8.1(i), not in excess of an aggregate principal amount of $20,000,000 at any time outstanding, provided that to the extent that the Facilities Subsidiary is a Restricted Subsidiary, the Facilities Subsidiary shall not suffer to exist any Indebtedness permitted by this subsection (j) on any day unless there shall have been a period of at least 45 consecutive days within the 12 months immediately preceding such day during which the Facilities Subsidiary shall have been free from all Indebtedness permitted by this subsection (j);
(k) from and after the time that the Facilities Subsidiary or any Designated Immaterial Subsidiary becomes a Restricted Subsidiary, Indebtedness of the Facilities Subsidiary or any such Designated Immaterial Subsidiary outstanding at the time the Facilities Subsidiary or such Designated Immaterial Subsidiary becomes a Restricted Subsidiary, provided that (i) immediately after the Facilities Subsidiary or any such Designated Immaterial Subsidiary becomes a Restricted Subsidiary, the Company could incur at least $1 of additional Funded Debt pursuant to subsection (i) above (the Facilities Subsidiary or any such Designated Immaterial Subsidiary shall be deemed to be a Restricted Subsidiary for the four consecutive fiscal quarters immediately prior to its becoming a Restricted Subsidiary for purposes of determining Pro Forma Free Cash Flow), and (ii) the aggregate amount (without duplication) of such Indebtedness and all other Indebtedness, in each case, secured by Liens permitted by subsection 8.1(g) does not violate subclause (iv) to exceed $5,000,000the proviso to such subsection 8.1(g);
(l) Indebtedness of the Company representing the Swap Termination Value of Swap Contracts entered into in the ordinary course of business as bona fide hedging transactions;
(m) Indebtedness of Plum Creek Southern evidenced by the Plum Creek Southern Timber Assumption Agreement;
(n) Indebtedness of Plum Creek South Central evidenced by the Plum Creek South Central Assumption Agreement; and
(o) Indebtedness represented by the NATC Credit Agreement, provided such Indebtedness is repaid in full on or before October 10, 2001.
Appears in 1 contract
Limitation on Indebtedness. Create(a) The Company will not, incurand will not permit any Restricted Subsidiary to, assume or suffer to exist Incur any Indebtedness; provided, excepthowever, that the Company or any Restricted Subsidiary may Incur Indebtedness if on the date of the Incurrence of such Indebtedness, after giving effect to the Incurrence thereof, the Consolidated Coverage Ratio would be equal to or greater than 2.00 to 1.00; provided, further, however, that any Non-Guarantor Subsidiary may Incur Indebtedness under this Section 407(a) not to exceed $100.0 million of Indebtedness.
(b) Notwithstanding Section 407(a), the Company and its Restricted Subsidiaries may Incur the following Indebtedness:
(i) Indebtedness (I) Incurred pursuant to any Debt Facility (including but not limited to in respect of letters of credit or bankers’ acceptances) and (without limiting the foregoing), in each case, any Refinancing Indebtedness in respect thereof, in a maximum principal amount at any time outstanding not exceeding in the aggregate $1,250.0 million plus (II) an additional amount of Indebtedness Incurred if, on the date of the Incurrence of such Indebtedness (other than any Refinancing Indebtedness), on a pro forma basis after giving effect to such Incurrence (or, at the Company’s option, on the date of the entry into the definitive agreement providing the commitment to fund such Indebtedness after giving pro forma effect to the Incurrence of the entire committed amount of such Indebtedness (such committed amount, a “Ratio Tested Committed Amount”), in which case such Ratio Tested Committed Amount may thereafter be borrowed and reborrowed, in whole or in part, from time to time, without further compliance with this covenant), the Consolidated Secured Net Leverage Ratio would be equal to or less than 3.25 to 1.00, and (in the case of this subclause (II)) the Incurrence of any Refinancing Indebtedness with respect to any Indebtedness Incurred in reliance on this subclause (II) (including any Indebtedness in respect of a Ratio Tested Committed Amount);
(ii) Indebtedness (A) of any Restricted Subsidiary to the Company, or (B) of the Company or any Restricted Subsidiary to any Restricted Subsidiary; provided that, in the case of this Section 407(b)(ii), any subsequent issuance or transfer of any Capital Stock of such Restricted Subsidiary to which such Indebtedness is owed, or other event, that results in such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of such Indebtedness (except to the Company or a Restricted Subsidiary) will be deemed, in each case, an Incurrence of such Indebtedness by the issuer thereof not permitted by this Section 407(b)(ii);
(iii) Indebtedness represented by the Notes (other than Additional Notes), any Indebtedness (other than the Indebtedness under any Debt Facility Incurred pursuant to Section 407(b)(i)(I) ) outstanding (or Incurred pursuant to any commitment outstanding) on the Issue Date and any Refinancing Indebtedness Incurred in respect of any Indebtedness (or unutilized commitments) described in this Section 407(b)(iii) or Section 407(a);
(iv) Purchase Money Obligations and Finance Lease Obligations, and in each case any Refinancing Indebtedness with respect thereto, (A) outstanding on the Issue Date and (B) in an additional aggregate principal amount at any time outstanding not exceeding an amount equal to the greater of (a) $200.0 million and (b) 6.5% of Consolidated Total Assets;
(v) Indebtedness (A) supported by a letter of credit issued pursuant to any Debt Facility in a principal amount not exceeding the face amount of such letter of credit or (B) consisting of accommodation guarantees for the benefit of trade creditors of the Company or any of its Restricted Subsidiaries;
(vi) (A) Guarantees by the Company or any Restricted Subsidiary of Indebtedness or any other obligation or liability of the Company or any Restricted Subsidiary (other than any Indebtedness Incurred by the Company or such Restricted Subsidiary, as the case may be, in violation of this Section 407), or (B) without limiting Section 413, Indebtedness of the Company or any Restricted Subsidiary arising by reason of any Lien granted by or applicable to such Person securing Indebtedness of the Company or any Restricted Subsidiary (other than any Indebtedness Incurred by the Company or such Restricted Subsidiary, as the case may be, in violation of this Section 407);
(vii) Indebtedness of the Borrower under Company or any Restricted Subsidiary (A) arising from the Loan Documentshonoring of a check, draft or similar instrument of such Person drawn against insufficient funds in the ordinary course of business, or (B) consisting of guarantees, indemnities, obligations in respect of earnouts or other purchase price adjustments, or similar obligations, Incurred in connection with the acquisition or disposition of any business, assets or Person;
(bviii) Indebtedness (i) of the Borrower Company or any Restricted Subsidiary in respect of (A) letters of credit, bankers’ acceptances or other similar instruments or obligations issued, or relating to a Wholly Owned liabilities or obligations incurred, in the ordinary course of business (including those issued to governmental entities in connection with self-insurance under applicable workers’ compensation statutes), (B) completion guarantees, surety, judgment, appeal or performance bonds, or other similar bonds, instruments or obligations, provided, or relating to liabilities or obligations incurred, in the ordinary course of business, including in respect of liabilities or obligations of franchisees, (C) Hedging Obligations, (D) the financing of insurance premiums in the ordinary course of business, (E) take-or-pay obligations under supply arrangements incurred in the ordinary course of business, (F) netting, overdraft protection and other arrangements arising under standard business terms of any bank at which the Company or any Restricted Subsidiary maintains an overdraft, cash pooling or other similar facility or arrangement or (G) Bank Products Obligations;
(ix) Indebtedness of (A) the Company or any Restricted Subsidiary Incurred to finance or refinance, or otherwise Incurred in connection with, any acquisition of assets (including Capital Stock), business or Person, or any merger or consolidation of any Person with or into the Company or any Restricted Subsidiary, or (iiB) of a Domestic Wholly Owned Subsidiary to any Person that is acquired by or merged or consolidated with or into the Borrower Company or any other SubsidiaryRestricted Subsidiary (including Indebtedness thereof Incurred in connection with any such acquisition, merger or consolidation); provided that on the date of such acquisition, merger or consolidation, after giving effect thereto, (iii1) the Consolidated Coverage Ratio would be equal to or greater than 2.00:1.00 or (2) the Consolidated Coverage Ratio would be equal to or greater than the Consolidated Coverage Ratio immediately prior to giving effect thereto; and any Refinancing Indebtedness with respect to any such Indebtedness;
(x) Indebtedness of Servicios to the Borrower Company or any Restricted Subsidiary in an aggregate principal amount at any time outstanding not exceeding an amount equal to exceed the greater of (a) $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement 350.0 million and (ivb) 12.0% of Consolidated Total Assets;
(xi) (A) Indebtedness of any Foreign Subsidiary PCC Ventures (and Guarantees thereof (other than ServiciosGuarantees of the principal or interest thereof) by the Company or any other Subsidiary customary for non-recourse financings), provided that such Indebtedness is not recourse to the Borrower Company or any Restricted Subsidiary and (B) additional Indebtedness of PCC Ventures in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed exceeding $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent50.0 million;
(cxii) Indebtedness of the Borrower or any Foreign Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof;
(f) Indebtedness of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding an amount equal to the greater of (ia) $15,000,000, minus 100.0 million and (iib) the sum 3.5% of Consolidated Total Assets; and
(xiii) Indebtedness (A) of a Receivables Subsidiary secured by a Lien on all or part of the amount assets disposed of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and in, or otherwise Incurred in connection with, a Financing Disposition or (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became otherwise Incurred in connection with a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness Specified Receivables Facility in an aggregate principal amount at any time outstanding under this Section 407(b)(xiii) not exceeding an amount equal to $100.0 million; provided that (1) such Indebtedness is not recourse to the Company or any Restricted Subsidiary that is not a Receivables Subsidiary (other than with respect to Standard Receivables Undertakings); (2) in the event such Indebtedness shall become recourse to the Company or any Restricted Subsidiary that is not a Receivables Subsidiary (other than with respect to Standard Receivables Undertakings), such Indebtedness will be deemed to be, and must be classified by the Company as, Incurred at such time (or at the time initially Incurred) under one or more of the other provisions of this Section 407 for so long as such Indebtedness shall be so recourse; and (3) in the event that at any time thereafter such Indebtedness shall comply with the provisions of the preceding subclause (1), the Company may classify such Indebtedness in whole or in part as Incurred under this Section 407(b)(xiii).
(c) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to and in compliance with, this Section 407, (i) $15,000,000 minus any other obligation of the obligor on such Indebtedness (or of any other Person who could have Incurred such Indebtedness under this Section 407) arising under any Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation supporting such Indebtedness shall be disregarded to the extent that such Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation secures the principal amount of such Indebtedness; (ii) in the sum event that Indebtedness Incurred meets the criteria of more than one of the types of Indebtedness described in Section 407(a) or Section 407(b), the Company, in its sole discretion, shall classify such item of Indebtedness on the date of Incurrence and may later reclassify such item of Indebtedness in any manner that complies with Section 407(a) or Section 407(b) and will be entitled to divide the amount and type of such Indebtedness among more than one of such clauses under Section 407(a) or Section 407(b); provided that all Indebtedness outstanding on the Issue Date under the Senior Credit Facilities shall be deemed Incurred under Section 407(b)(i)(I) and may not later be reclassified; (Aiii) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing 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 accordance with GAAP; (iv) the principal amount of Indebtedness outstanding under any clause of Section 407(b) shall be determined after giving effect to the application of proceeds of any such Indebtedness to refinance any such other Indebtedness; (v) if any Indebtedness is Incurred to refinance Indebtedness initially Incurred (or, Indebtedness Incurred to refinance Indebtedness initially Incurred) in reliance on any provision of Section 407(b) measured by reference to a percentage of Consolidated Total Assets at the time of Incurrence, and such refinancing would cause such percentage of Consolidated Total Assets to be exceeded if calculated based on the Consolidated Total Assets on the date of such refinancing, such percentage of Consolidated Total Assets shall not be deemed to be exceeded (and such refinancing Indebtedness shall be deemed permitted) so long as the principal amount of such refinancing Indebtedness does not exceed an amount equal to the principal amount of such Indebtedness being refinanced, plus the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing; and (vi) if any Indebtedness is Incurred to refinance Indebtedness initially Incurred (or, Indebtedness Incurred to refinance Indebtedness initially Incurred) in reliance on any provision of Section 407(b) measured by a dollar amount, such dollar amount shall not be deemed to be exceeded (and such refinancing Indebtedness shall be deemed permitted) to the extent the principal amount of such newly Incurred Indebtedness does not exceed the principal amount of such Indebtedness being refinanced, plus the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing.
(d) For purposes of determining compliance with any provision of Section 407(b) (or any category of Permitted Liens described in the definition thereof) measured by a dollar amount or by reference to a percentage of Consolidated Total Assets, in each case, for the Incurrence of Indebtedness or Liens securing Indebtedness denominated in a foreign currency, the dollar equivalent principal amount of such Indebtedness Incurred pursuant thereto shall be calculated based on the relevant currency exchange rate in effect on the date that such Indebtedness was Incurred, in the case of term Indebtedness, or first committed, in the case of revolving or deferred draw Indebtedness; provided that (x) the dollar equivalent principal amount of any such Indebtedness outstanding on the Issue Date shall be calculated based on the relevant currency exchange rate in effect on the Issue Date, (y) if such Indebtedness is Incurred to refinance other Indebtedness denominated in a foreign currency (or in a different currency from such Indebtedness so being Incurred), and such refinancing would cause the applicable provision of Section 407(b) (or category of Permitted Liens) measured by a dollar amount or by reference to a percentage of Consolidated Total Assets, as applicable, to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such provision of Section 407(b) (or category of Permitted Liens) measured by a dollar amount or by reference to a percentage of Consolidated Total Assets, as applicable, shall be deemed not to have been exceeded so long as the principal amount of such Refinancing Indebtedness does not exceed (i) the outstanding or committed principal amount (whichever is higher) of such Indebtedness being refinanced plus (ii) the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing and (z) the dollar equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on, at the Company’s option, (A) the Issue Date, (B) any date on which any of the respective commitments under the Senior Credit Facilities shall be reallocated between or among facilities or subfacilities thereunder, or on which such rate is otherwise calculated for any purpose thereunder, or (C) the date of such Incurrence. The principal amount of indebtedness attributable any Indebtedness Incurred to sale and leaseback transactions permitted pursuant refinance other Indebtedness, if Incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Indebtedness is denominated that is in effect on the date of such refinancing. Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;408. [Reserved].
Appears in 1 contract
Limitation on Indebtedness. CreateNo Credit Party shall, and no Credit Party shall suffer or permit any of its Restricted Subsidiaries to, create, incur, assume assume, permit to exist, or suffer to exist otherwise become or remain directly or indirectly liable with respect to, any Indebtedness, except:
(a) Indebtedness of the Borrower under the Loan DocumentsObligations;
(b) Indebtedness (i) of the Borrower to a Wholly Owned Subsidiary, (ii) of a Domestic Wholly Owned Subsidiary to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding existing on the date of this Agreement SecondFourth Amendment Effective Date and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary set forth in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative AgentSchedule 6.5 including Permitted Refinancings thereof;
(c) Indebtedness not to exceed $10,000,00015,000,000 in the aggregate at any time outstanding, consisting of the Borrower Capital Lease Obligations or any Subsidiary incurred to finance the acquisition secured by Liens permitted by Section 6.1(h) or construction of fixed or capital assets Section 6.1(i) and Permitted Refinancings thereof;
(whether d) unsecured intercompany Indebtedness permitted pursuant to Section 6.4(b);
(e) Subordinated Indebtedness subject to a loan, a Financing Lease or otherwise) Subordination Agreement in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) exceed $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof10,000,00015,000,000 ;
(f) Indebtedness of a Person which becomes Restricted Subsidiary of the Borrower acquired pursuant to a Subsidiary after Permitted Acquisition (or a similar Investment permitted by Section 6.4) or Indebtedness of a Target assumed at the date hereof time of a Permitted Acquisition of or such other Investment in an such Target, in each instance, other than revolving credit facilities or commitments therefor; provided that (i) such Indebtedness was not incurred in connection with, or in anticipation or contemplation of, such Permitted Acquisition or other Investment and (ii) the aggregate principal amount of all Indebtedness permitted by this Section 6.5(f) shall not at any time outstanding not exceeding exceed $10,000,00015,000,000 ;
(g) unsecured Indebtedness of the Borrower or any other Credit Party (other than Holdings) consisting of Contingent Acquisition Consideration; provided that (i) the maximum aggregate amount payable with respect to all such Contingent Acquisition Consideration does not exceed $15,000,00020,000,00040,000,000 in the aggregate at any time outstanding (assuming the remaining maximum performance standards related thereto are satisfied, minus except to the extent all or any portion thereof becomes a fixed, matured or earned amount, in which case such amount shall be deemed the actual amount of such Contingent Acquisition Consideration), and (ii) with respect to any Contingent Acquisition Consideration agreed to after the sum Closing Date, such Contingent Acquisition Consideration is subordinated to the Obligations on terms and conditions reasonably satisfactory to Agent;
(h) Indebtedness consisting of (A) the amount financing of Indebtedness outstanding under clauses (c) and insurance premiums in the Ordinary Course of Business;
(i) endorsements for collection or deposit in the Ordinary Course of this Section 7.2 Business;
(j) Rate Contracts entered into in the Ordinary Course of Business for bona fide hedging purposes and not for speculation with (i) any Lender or an Affiliate of any Lender or (ii) otherwise with Agent’s prior written consent;
(k) Indebtedness arising under indemnity agreements to title insurers to cause such title insurers to issue to Agent title insurance policies;
(l) Indebtedness arising with respect to customary indemnification obligations and purchase price adjustments in favor of (i) sellers in connection with Acquisitions or similar Investments permitted hereunder and (Bii) purchasers in connection with Dispositions permitted under Section 6.2(b);
(m) Indebtedness arising under guaranties made in the amount Ordinary Course of indebtedness attributable to sale and leaseback transactions Business of obligations of any Credit Party (other than Holdings) which obligations are otherwise permitted pursuant to Section 7.12, hereunder; provided that (x) if such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect obligation is subordinated to the acquisition Obligations, such guaranty shall be subordinated to the same extent;
(n) Indebtedness incurred in the Ordinary Course of such corporation Business with respect to surety and appeals bonds, performance bonds and other similar obligations;
(o) Indebtedness consisting of promissory notes issued by Holdings to any stockholder of Holdings or any current or former director, officer, employee, member of management, manager or consultant of Holdings, the Borrower or any Restricted Subsidiary (or their respective immediate family members) to finance the purchase or redemption of Stock permitted by Section 6.8(b); and
(p) other unsecured Indebtedness not exceeding in the aggregate at any time outstanding the greater of $8,500,00017,500,000 or 10% of Consolidated Adjusted EBITDA as of the most recently ended Test Period so long as no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals continuing or extensions thereof not increasing would result from the principal amount thereofincurrence of such Indebtedness.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;
Appears in 1 contract
Limitation on Indebtedness. Create(a) The Company shall not, incurand shall not permit any of its Restricted Subsidiaries to, assume directly or suffer indirectly, Incur any Indebtedness (including Acquired Indebtedness); provided, however, that the Company and any Restricted Subsidiary may Incur Indebtedness (including Acquired Indebtedness) if on the date of such Incurrence and after giving effect thereto on a pro forma basis the Fixed Charge Coverage Ratio for the Company and its Restricted Subsidiaries is at least 2.00 to exist 1.00; provided that the aggregate principal amount of Indebtedness that may be Incurred pursuant to the foregoing by Non-Guarantor Subsidiaries, together with any Indebtedness incurred by Non-Guarantor Subsidiaries pursuant to Sections 4.09(b)(6) and (17), shall not exceed the greater of (x) $100.0 million and (y) 30.0% of Consolidated EBITDA at any one time outstanding.
(b) Section 4.09(a) shall not prohibit the Incurrence of the following Indebtedness:
(1) Indebtedness of the Company or any Restricted Subsidiary Incurred under a Credit Facility (including the Senior Credit Facilities) (including in the case of any refinancing of the Senior Credit Facilities or any portion thereof, exceptthe aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing) and the issuance and creation of letters of credit and bankers’ acceptances thereunder (with letters of credit and bankers’ acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate amount at any time outstanding up to (a) $825.0 million plus the greater of (x) $300.0 million and (y) 100% of Consolidated EBITDA, plus (b) the greater of (x) $325.0 million and (y) the Borrowing Base, less (i) in each case, the aggregate principal amount of all principal repayments of Indebtedness under Credit Facilities (which, in the case of a revolving Credit Facility, shall mean a reduction in the corresponding amount of commitments) with Net Available Cash from Asset Sales made pursuant to Section 4.10(b)(1)(a) in satisfaction of the requirements of such covenant, less (ii) without duplication of any repayments set forth in the foregoing clause (i) in the case of Section 4.09(b)(1)(a), the amount of term loans outstanding under the Term Loan Facility and, in the case of Section 4.09(b)(1)(b), the amount of loans outstanding under the ABL Credit Agreement, in each case that are purchased by Ventas pursuant to its exercise of the Ventas Purchase Option;
(2) Indebtedness represented by the Notes (including any Note Guarantee) (other than any Additional Notes);
(3) Indebtedness of the Company and its Restricted Subsidiaries in existence on the Issue Date (other than Indebtedness described in clauses (1) and (2));
(4) Guarantees by the Company or its Restricted Subsidiaries of Indebtedness permitted to be Incurred by the Company or a Restricted Subsidiary in accordance with the provisions of this Indenture; provided that in the event such Indebtedness that is being Guaranteed is a Subordinated Obligation or a Guarantor Subordinated Obligation, then any related Guarantee of the Company or a Note Guarantor shall be subordinated in right of payment to the Notes or the Note Guarantee, as the case may be;
(5) Indebtedness of the Company or Note Guarantor owing to and held by any Restricted Subsidiary or Indebtedness of a Restricted Subsidiary owing to and held by the Company or any other Restricted Subsidiary; provided, however,
(a) if the Company or a Note Guarantor is the obligor on Indebtedness owing to a Non-Guarantor Subsidiary, such Indebtedness is expressly subordinated in right of payment to the Notes;
(b) if a Note Guarantor is the obligor on Indebtedness owing to a Non-Guarantor Subsidiary, such Indebtedness is subordinated in right of payment to the Note Guarantees of such Note Guarantor;
(i) any subsequent issuance or transfer of Capital Stock or other event that results in any such Indebtedness being beneficially held by a Person other than the Company or a Restricted Subsidiary of the Company; and
(ii) any sale or other transfer of any such Indebtedness to a Person other than the Company or a Restricted Subsidiary of the Company, shall be deemed, in each case, to constitute an Incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be.
(6) Indebtedness of (x) Persons Incurred and outstanding on the date on which such Person became a Restricted Subsidiary or was acquired by, or merged into, or consolidated with the Company or any Restricted Subsidiary or (y) Incurred to provide all or any portion of funds utilized to consummate an acquisition (or other purchase of assets) and any Refinancing Indebtedness with respect to any Indebtedness incurred pursuant to this Section 4.09(b)(6); provided, however, that in the case of clauses (x) and (y) after giving effect to such acquisition, merger or consolidation, either:
(a) the Company would have been able to Incur $1.00 of additional Indebtedness pursuant to Section 4.09(a) after giving effect to such acquisition and the Incurrence of the Borrower under the Loan Documents;such Indebtedness pursuant to this Section 4.09(b)(6); or
(b) the Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries is at least equal to the Fixed Charge Coverage Ratio immediately prior to such acquisition or merger; provided that the aggregate principal amount of Indebtedness incurred by Non-Guarantor Subsidiaries under this Section 4.09(b)(6), together with any Indebtedness incurred by Non-Guarantor Subsidiaries pursuant to Sections 4.09(a) and 4.09(b)(17), shall not exceed the greater of (x) $100.0 million and (y) 30% of Consolidated EBITDA at any one time outstanding
(7) Indebtedness under Hedging Obligations that are Incurred in the ordinary course of business (and not for speculative purposes);
(8) Indebtedness (iincluding Capitalized Lease Obligations, mortgage financings or purchase money obligations) of the Borrower Company or a Restricted Subsidiary Incurred to finance any part of the purchase price for, or the cost of design, lease, construction, repair, maintenance, installation or improvement of, any property (real or personal), plant or equipment used or to be used in the business of the Company or a Wholly Owned Restricted Subsidiary (or the Capital Stock of any Person owning any such property, plant or equipment (but no other material assets other than cash or cash equivalents)), and any Indebtedness of the Company or a Restricted Subsidiary that serves to refund, refinance, replace, exchange, renew, repay or extend any Indebtedness Incurred pursuant to this clause (8), in principal amount not to exceed the greater of (x) $120.0 million and (y) 40.0% of Consolidated EBITDA in the aggregate at any one time outstanding together with all other Indebtedness issued under this clause (8) then outstanding;
(9) Indebtedness Incurred by the Company or any of its Restricted Subsidiaries in respect of workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance, self-insurance obligations, performance, bid, surety, appeal and similar bonds and completion or performance Guarantees (not for borrowed money) provided in the ordinary course of business, and any letters of credit functioning as or supporting any of the foregoing;
(10) Indebtedness arising from agreements of the Company or a Restricted Subsidiary providing for indemnification Incurred or assumed in connection with the acquisition or disposition of, or adjustment of purchase price or similar obligations, in each case, Incurred or assumed in connection with the disposition of, any business, property or assets of the Company or any business, property, assets or Capital Stock of a Restricted Subsidiary, other than Guarantees of Indebtedness Incurred by any Person acquiring all or any portion of such business, property, assets or a Subsidiary for the purpose of financing such acquisition;
(iia) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided, however, that such Indebtedness is extinguished, refinanced or otherwise covered within five Business Days of Incurrence, (b) Indebtedness owed on a short-term basis of no longer than 90 days to banks or financial institutions Incurred in the ordinary course of business that arises in connection with ordinary banking arrangements to manage cash balances of the Company and its Subsidiaries or (c) Indebtedness Incurred pursuant to the ordinary course transfer of funds and cash management transactions between or among Parent, the Company, the Restricted Subsidiaries, the Permitted Joint Ventures of the Company and the Restricted Subsidiaries and the BSA Entities;
(12) the Incurrence or issuance by the Company or any Restricted Subsidiary of Refi-nancing Indebtedness that serves to refund, refinance, replace, exchange, renew, repay or extend any Indebtedness Incurred as permitted under Section 4.09(a) and clauses (2), (3), (6) and this clause (12) of this Section 4.09(b) or any Indebtedness issued to so refund, refinance, replace, exchange, renew, repay or extend such Indebtedness, including additional Indebtedness Incurred to pay premiums (including reasonable, as determined in good faith by the Company, tender premiums), defeasance costs, accrued interest and fees and expenses in connection therewith prior to its respective maturity;
(13) shares of Preferred Stock of a Domestic Wholly Owned Restricted Subsidiary issued to the Borrower Company or another Restricted Subsidiary; provided that any subsequent issuance or transfer of any Capital Stock or any other Subsidiary, event that results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such shares of Preferred Stock (iii) of Servicios except to the Borrower Company or another of its Restricted Subsidiaries) shall be deemed in each case to be an issuance of such shares of Preferred Stock not permitted by this clause (13);
(14) Indebtedness consisting of the financing of (a) insurance premiums or (b) take-or-pay obligations contained in supply arrangements, in each case Incurred in the ordinary course of business;
(15) Indebtedness to the extent that the net proceeds thereof are promptly deposited to defease or to satisfy and discharge the Notes;
(16) Indebtedness of the Company or any Restricted Subsidiary in the form of loans from the Captive Insurance Subsidiary in an aggregate principal amount at any time outstanding not to exceed twenty percent (20%) of the total assets of the Captive Insurance Subsidiary, as shown on the most recent balance sheet of the Captive Insurance Subsidiary in accordance with GAAP;
(17) Indebtedness of Non-Guarantor Subsidiaries together with any Indebtedness incurred by Non-Guarantor Subsidiaries pursuant to Section 4.09(a) and clause (6) above not exceed the greater of (x) $5,000,000 100.0 million and (y) 30.0% of Consolidated EBITDA at any one time outstanding;
(18) Indebtedness consisting of Indebtedness issued by the Company or any of its Restricted Subsidiaries to current or former officers, directors and employees thereof, their respective estates, spouses or former spouses, in each case to finance the purchase or redemption of Capital Stock of the Company or any direct or indirect parent entity of the Company to the extent permitted under this Indenture;
(19) unsecured Indebtedness in respect of obligations of the Company or any of its Restricted Subsidiaries to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 90 days after the incurrence of the related obligations) in the ordinary course of business;
(20) Indebtedness incurred on behalf of or representing Guarantees of Indebtedness of Permitted Joint Ventures of the Company or any Restricted Subsidiary not in excess the greater of (x) $120.0 million and (y) 40.0% of Consolidated EBITDA at any one time outstanding;
(21) Indebtedness incurred in connection with Permitted IRB Transactions;
(22) Indebtedness of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary BSA Entities in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed at any one time outstanding $1,000,000, 30.0 million; provided that such Indebtedness referred to shall not be guaranteed in clauses (iii) and (iv) hereof, if to any respect by the Borrower Company or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative AgentNote Guarantor (other than any BSA Entity);
(c23) Attributable Indebtedness of the Borrower Company or any a Restricted Subsidiary incurred to finance the acquisition or construction of fixed or capital assets arising from Permitted Sale/ Leaseback Transactions;
(whether 24) Indebtedness Incurred pursuant to a loan, a Financing Lease or otherwise) Qualified Receivables Transaction in an aggregate principal amount not exceeding as to exceed the Borrower and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the amount greater of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof;
(f) Indebtedness of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof $75.0 million and (y) 25.0% of Consolidated EBITDA;
(25) in the event Ventas exercises the Ventas Purchase Option, any Guarantee by Parent, the Company or any Domestic Restricted Subsidiary that borrows under or guarantees the Term Loan Facility (other than the Master Lease Tenants) of Indebtedness of the Master Lease Tenants owed to Ventas as a result of its exercise of the Ventas Purchase Option;
(26) Indebtedness that is secured by a Lien, so long as, immediately after giving effect to the acquisition Incurrence of such corporation by Indebtedness on the Borrower no Default date such Indebtedness is Incurred (or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount case of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted Incurred pursuant to Section 7.12;
(ja revolving commitment under any Credit Facility on the date such revolving commitments are initially provided and assuming such revolving commitments are fully drawn on such date) Indebtedness in on a pro forma basis the form of Guarantee Obligations permitted by Section 7.4Senior Secured Net Leverage Ratio would not exceed 3.25 to 1.0; and
(k27) Indebtedness not otherwise permitted by in addition to the foregoing items referred to in clauses (a1) through (j26) above, Indebtedness of the Company and its Restricted Subsidiaries in an aggregate outstanding principal amount at any time outstanding that, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause (27) and then outstanding, will not to exceed the greater of (x) $5,000,000;100.0 million and (y) 30.0% of Consolidated EBITDA.
Appears in 1 contract
Limitation on Indebtedness. CreateThe Borrowers shall not, and shall not cause or permit any Subsidiary to, directly or indirectly, create, incur, assume or assume, suffer to exist exist, or otherwise become or remain directly or indirectly liable with respect to, any Indebtedness, except:except (each of which shall be given independent effect):
(a) Indebtedness of the Borrower under the Loan DocumentsObligations;
(b) Indebtedness (i) consisting of the Borrower Contingent Obligations permitted pursuant to a Wholly Owned Subsidiary, (ii) of a Domestic Wholly Owned Subsidiary to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative AgentSection 8.8;
(c) Indebtedness of existing on the Borrower Original Closing Date or any Subsidiary incurred the Safeline Closing Date which is Debt to finance Be Repaid (which Indebtedness may not be outstanding beyond the acquisition Original Closing Date or construction of fixed the Safeline Closing Date, as the case may be) or capital assets (whether pursuant to a loan, a Financing Lease is set forth in Schedule 6.17 or otherwise) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12Schedule 6.17A;
(d) Indebtedness incurred in connection with Capital Leases to the extent permitted by subsection 8.1(j) and Indebtedness incurred in connection with the acquisition, construction or improvement of property to the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notesextent permitted by subsection 8.1(i);
(e) Indebtedness outstanding on the date hereof, of any Subsidiary to US Borrower or incurred hereafter pursuant to existing commitments or agreements, CH Borrower and, in each caseto the extent the credit extension creating such Indebtedness is permitted by subsection 8.4(c), listed on Schedule 7.2 and (e), (l), (p), (r), (u), (v) or (w) or (x), of any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereofSubsidiary to any other Subsidiary;
(f) Indebtedness of a Person which becomes a Subsidiary after US Borrower under the date hereof Senior Subordinated Notes in an aggregate principal amount at not to exceed U.S. $135.0 million, less any time outstanding not exceeding prepayments or repayments thereof (i) $15,000,000, minus (ii) including in connection with the sum of (A) transactions to occur on the amount of Indebtedness outstanding under clauses (c) Second Amendment and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuingRestatement Date), and any refinancings, refundings, renewals or extensions thereof not increasing guarantee of the principal amount thereof.Senior Subordinated Notes by any Domestic Subsidiary in accordance with the terms of the Senior Subordinated Note Documents as in effect on the Original Closing Date;
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred Foreign Subsidiaries in the ordinary course of business, an aggregate principal amount not to exceed $5,000,000 in the aggregate at any time outstandingoutstanding for all Foreign Subsidiaries (exclusive of any amount incurred pursuant to subsection 8.5(n) below) the Dollar Equivalent amount of (x) U.S. $50.0 million and (y) U.S. $60.0 million so long as the Debt to EBITDA Ratio as of the end of the most recently completed fiscal quarter is less than 2.5 to 1.0; provided, however, that not more than the Dollar Equivalent amount of ((x) U.S. $25.0 million and (y) U.S. $30.0 million so long as the Debt to EBITDA Ratio as of the end of the most recently completed fiscal quarter is less than 2.5 to 1.0 in the aggregate may be incurred and outstanding at any time pursuant to any agreement that is for permanent funded debt;
(h) unsecured Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into not to exceed in the ordinary course aggregate at any time outstanding the Dollar Equivalent amount of business for hedging purposes and not for speculative purposesU.S. $10.0 million;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum arising from honoring a check, draft or similar instrument against insufficient funds; provided, however, that such Indebtedness is extinguished within five Business Days of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12its incurrence;
(j) Indebtedness in the form of Guarantee Obligations obligations under operating leases permitted by Section 7.48.3 or Section 8.20;
(k) the Safeline Seller Notes as in effect on the Safeline Closing Date;
(l) Indebtedness of a Person (other than Indebtedness of Safeline Limited and its Subsidiaries as of the Safeline Closing Date) existing at the time such Person became a Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with, or in contemplation of, such Person becoming a Subsidiary or the acquisition of such assets, not to exceed in the aggregate at any time outstanding the Dollar Equivalent amount of U.S. $10.0 million;
(m) unsecured Indebtedness incurred by US Borrower to former employees in connection with the purchase or redemption of stock of US Borrower or Holding not to exceed in aggregate amount outstanding the Dollar Equivalent amount of U.S. $2.50 million;
(n) Indebtedness of the Chinese Subsidiaries pursuant to local working capital facilities and other Indebtedness not to exceed in the aggregate at any time outstanding for all Chinese Subsidiaries the Dollar Equivalent amount of U.S. $15.0 million; and
(ko) any renewals, extensions, substitutions, refinancings or replacements (each, for purposes of this subsection (o), a "refinancing") of any Indebtedness not otherwise permitted by this Section 8.5, including any successive refinancings, so long as any such refinancing Indebtedness shall (w) not be on financial and other terms, in the foregoing clauses reasonable judgment of the Borrowers, that are more onerous than the Indebtedness being refinanced, (ax) through not have a stated maturity or Average Life that is shorter than the Indebtedness being refinanced, (jy) be at least as subordinate to the Obligations as the Indebtedness being refinanced (and unsecured if the refinanced Indebtedness is unsecured) and (z) be in an aggregate principal amount that does not exceed the principal amount so refinanced, plus the lesser of (I) the stated amount of any premium or other payment required to be paid in connection with such refinancing pursuant to the terms of the Indebtedness being refinanced and (II) the amount of premium or other payment actually paid at such time to refinance the Indebtedness, plus, in either case, the amount of reasonable expenses of the Borrowers or any time outstanding Subsidiary incurred in connection with such refinancing. If such Indebtedness is incurred to refinance Indebtedness denominated in a currency other than U.S. Dollars and such refinancing would cause a Dollar Equivalent restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such Dollar Equivalent restriction shall not be deemed to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed $5,000,000;the principal amount of such Indebtedness being refinanced, but the ability to make subsequent incurrences of Indebtedness subject to the applicable Dollar Equivalent restriction shall be determined as if the relevant currency exchange rate applied to any such previous refinancing was the rate in effect on the date of such refinancing.
Appears in 1 contract
Samples: Credit Agreement (Mt Investors Inc/)
Limitation on Indebtedness. CreateNo Ten Percent Subsidiary will or will permit any of its Subsidiaries to, incur, assume incur or suffer at any time be liable with respect to exist any Indebtedness, Indebtedness except:
(a) Indebtedness of under this Master Agreement, the Borrower under 2000 Master Agreement and the Loan Documents1998 Master Agreement;
(b) other Indebtedness outstanding on the date hereof (ior, in the case of Persons that are not Ten Percent Subsidiaries on the date hereof, on the date such Person became a Ten Percent Subsidiary) not in excess of $10,000,000 in aggregate principal amount for such Ten Percent Subsidiary and its Subsidiaries in the aggregate (in the case of EPS and Star only) and refinancings thereof, provided that the principal amount thereof is not increased beyond the amount outstanding thereunder on the date hereof or, in the case of Ten Percent Subsidiaries other than EPS and Star, on the date such Person becomes a Ten Percent Subsidiary, as the case may be; provided, further that for purpose of the Borrower foregoing, intercompany debt between Obligors and loans from any Obligor to any Subsidiary shall not be included as Indebtedness; and provided, further that no Subsidiary shall incur Indebtedness or enter into intercompany debt solely in anticipation of being a Wholly Owned Subsidiary, (ii) of a Domestic Wholly Owned Ten Percent Subsidiary and subject to the Borrower or any other Subsidiary, restrictions set forth in this Section 5.14 (iiias opposed to an independent business purpose);
(c) Indebtedness secured by Liens permitted by Section 5.14; and
(d) Indebtedness of Servicios to such Ten Percent Subsidiary and its Subsidiaries not otherwise permitted by this Section incurred after the Borrower or any Subsidiary Initial Closing Date in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of 10,000,000 for such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Ten Percent Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof;
(f) Indebtedness of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;aggregate.
Appears in 1 contract
Samples: Master Agreement (Concord Efs Inc)
Limitation on Indebtedness. Create, issue, incur, assume assume, become liable in respect of or suffer to exist any Indebtedness, exceptexist:
(a) any Indebtedness of pursuant to any Receivables Transaction, except for Indebtedness pursuant to all Receivables Transactions that is (i) non-recourse with respect to the Borrower under the Loan Documents;and its Subsidiaries (other than any Receivables Subsidiary) and (ii) in an aggregate principal amount at any time outstanding not exceeding 15% of Consolidated Total Assets at such time; or
(b) any Indebtedness of any of the Subsidiaries other than (i) Indebtedness of the Borrower any Receivables Subsidiary pursuant to a Wholly Owned Subsidiaryany Receivables Transaction permitted under subsection 8.3(a), (ii) any Indebtedness of any Subsidiary as a Domestic Wholly Owned guarantor under or pursuant to any of those certain Note Purchase Agreements, so long as such Subsidiaries are Guarantors, (iii) any Indebtedness of any Subsidiary existing on the Closing Date and set forth on Schedule 8.3 and any refinancing thereof; provided, that the then outstanding principal amount thereof is not increased and the weighted average maturity thereof is not decreased, (iv) any Indebtedness of any Subsidiary which is a Guarantor, (v) any Indebtedness of any Subsidiary owed to the Borrower or any other Subsidiary, (iiivi) any Indebtedness arising in respect of Servicios to the Borrower capital leases or purchase money obligations incurred in accordance with subsection 8.2(h), (vii) any Subsidiary other Indebtedness of Subsidiaries in an aggregate principal amount at any time outstanding not to exceed the greater of (x) $5,000,000 in excess 200,000,000 or (y) 10% of Consolidated Total Assets at the amount of time such Indebtedness outstanding on the date of this Agreement and is incurred, (ivviii) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(cA) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower Xxxxxx Parent and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, Xxxxxx Credit Agreement in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing the a principal amount thereof;
(f) Indebtedness of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount not to exceed $330,000,000 at any time outstanding not exceeding (i) $15,000,000time, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount Permitted Xxxxxx Parent Refinancing Indebtedness in respect thereof, (ix) Indebtedness of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a any Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event in respect of Default shall have occurred netting services, automatic clearinghouse arrangements, overdraft protections and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred similar arrangements in each case in connection with deposit accounts in the ordinary course of business, and (x) any Guarantee Obligation of the Borrower in respect of Indebtedness incurred by any Subsidiary under clause (ix) hereof up to an aggregate principal amount not to exceed $5,000,000 in the aggregate 75,000,000 at any time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;.
Appears in 1 contract
Samples: Credit Agreement (Henry Schein Inc)
Limitation on Indebtedness. Create, incur, assume or suffer to exist (in each case, to "Incur") any Indebtedness, except:
(a) Indebtedness of the Borrower under the any Loan DocumentsParty pursuant to any Loan Document;
(b) Indebtedness (i) of the Borrower to a Wholly Owned Subsidiary, (ii) any Subsidiary and of a Domestic any Wholly Owned Subsidiary Guarantor to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwisesecured by Liens permitted by Section 7.3(g) in an aggregate principal amount not exceeding as to exceed, when added to the Borrower and its Subsidiaries Capital Lease Obligations permitted under paragraph (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (id) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.127.2, $30,000,000 at any one time outstanding;
(d) Capital Lease Obligations in an aggregate principal amount not to exceed, when added to the Indebtedness permitted under paragraph (c) of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notesthis Section 7.2, $30,000,000 at any one time outstanding;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, hereof and listed on Schedule 7.2 7.2(e) and any refinancings, refundings, renewals or extensions thereof not increasing (without any increase in the principal amount thereof);
(f) Indebtedness guarantees made in the ordinary course of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation business by the Borrower no Default or Event any of Default shall have occurred and be continuing, and its Subsidiaries of obligations of any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.Wholly Owned Subsidiary Guarantor;
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at under any time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into to protect the ordinary course Borrower or any of business for hedging purposes its Subsidiaries against fluctuations in interest rates and not for speculative purposes;
(h) other Indebtedness (contingent or direct) not to exceed $6,000,000 outstanding at any one time in respect of letters of credit issued for the account of the Borrower or any of its Subsidiaries in the conduct of their business in the ordinary course and any Guarantee Obligations thereof;
(i) Seller Indebtedness of the Borrower under the remaining Senior Notes outstanding upon the consummation of the Debt Tender Offer in an aggregate principal amount not to exceed $_________ at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12outstanding;
(j) Indebtedness renewals and extensions (in the form same or lesser principal amount on similar terms and conditions and in any case no less favorable to the interests of Guarantee Obligations permitted by Section 7.4; andthe Lenders) of any Indebtedness listed in the foregoing clauses;
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of Xxxxx Finance Company not to exceed $5,000,000;13,500,000 in aggregate principal amount outstanding at any time, provided that the aggregate principal amount of such Indebtedness outstanding at any time, when added to the aggregate principal amount of Indebtedness incurred pursuant to subsection 7.2(l) below and outstanding at such time, does not exceed $20,000,000; and
(l) other unsecured Indebtedness not to exceed $10,000,000 in aggregate principal amount outstanding at any time, provided that the aggregate principal amount of such Indebtedness outstanding at any time, when added to the aggregate principal amount of Indebtedness incurred pursuant to subsection 7.2(k) above and outstanding at such time, does not exceed $20,000,000.
Appears in 1 contract
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower Borrowers under the Loan Documentsthis Agreement;
(b) Indebtedness (i) of the Borrower Company to a Wholly Owned Subsidiaryany Subsidiary and, (ii) to the extent permitted by Section 10.8, of a Domestic Wholly Owned any Subsidiary to the Borrower Company or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower or Company and any Subsidiary of its Subsidiaries incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) in an aggregate principal amount not exceeding as to the Borrower Company and its Subsidiaries (i) $15,000,000 40,000,000 at any one time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12outstanding;
(d) Indebtedness of the Canadian Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated NotesCanadian Operating Facility incurred for working capital purposes in an aggregate principal amount not exceeding C$35,000,000 at any one time outstanding;
(e) Indebtedness of the Company under the NationsBank Line of Credit incurred for working capital purposes in an aggregate principal amount not exceeding $25,000,000 at any one time outstanding;
(f) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, hereof and listed on Schedule 7.2 10.2(f) and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof(excluding any Indebtedness required to be repaid pursuant to Section 8.2(g));
(fg) Indebtedness of a Person corporation which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding hereof, PROVIDED that (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of such indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (yii) immediately after giving effect to the acquisition of such corporation by the Borrower Company no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;
(h) Indebtedness of the Company of up to $400,000,000 under Interest Rate Protection Agreements the High Yield Notes, PROVIDED that the Borrowers and Hedge Agreements the General Administrative Agent shall have entered into a written supplement to this Agreement whereby the ordinary course Company agrees to maintain a senior leverage ratio of business for hedging purposes not greater than certain levels to be agreed by the Company and not for speculative purposesthe General Administrative Agent;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.410.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) additional Indebtedness of the Company not exceeding $50,000,000 in an aggregate principal amount at any one time outstanding of not to exceed $5,000,000;outstanding.
Appears in 1 contract
Limitation on Indebtedness. Create, incur, assume or suffer to exist (in each case, to "INCUR") any Indebtedness, except:
(a) Indebtedness of the Borrower under the any Loan DocumentsParty pursuant to any Loan Document;
(b) Indebtedness (i) of between the Borrower to and a Wholly Owned SubsidiarySubsidiary or between one Subsidiary and another; PROVIDED that (a) if the Borrower is the obligor on such Indebtedness, (ii) of a Domestic Wholly Owned Subsidiary such Indebtedness is expressly subordinated in liquidation to the Borrower or any other Subsidiaryprior payment in full in cash of all Obligations; and (b) if a Subsidiary that is not a Subsidiary Guarantor is the obligor on such Indebtedness, (iii) of Servicios such Indebtedness owing to the Borrower or any Subsidiary Guarantor, together with all intercompany Indebtedness owing from all Subsidiaries that are not Subsidiary Guarantors to the Borrower or a Subsidiary Guarantor, does not exceed $5,000,000 in aggregate principal amount at any time outstanding;
(c) Indebtedness secured by Liens permitted by Section 7.3(g) in an aggregate principal amount not to exceed $2,000,000 at any one time outstanding;
(d) Capital Lease Obligations in an aggregate principal amount not to exceed $5,000,000 at any one time outstanding;
(e) Indebtedness outstanding on the date hereof and listed on Schedule 7.2(e) to the Disclosure Letter and any refinancings, refundings, renewals or extensions thereof (without any increase in the principal amount thereof);
(f) unsecured Indebtedness of any Loan Party incurred in the ordinary course of business as a result of open account arrangements or accrued expenses in current account payables;
(g) Guarantee Obligations of any Indebtedness permitted by this Section 7.2; and
(h) Indebtedness under Interest Rate Protection Agreements required by Section 6.9;
(i) Indebtedness in respect of a revolving credit facility (the "FRENCH REVOLVER") for the purpose of funding the working capital needs in the ordinary course of business of Axiohm S.A. in French francs; PROVIDED that (i) the Dollar equivalent (determined in good faith by the Borrower) of the aggregate outstanding principal amount thereof (the "AXIOHM S.A. EQUIVALENT OUTSTANDINGS") shall not exceed $10,000,000 at any one time and (ii) on the date of any incurrence thereof, after giving effect thereto, the sum of the Axiohm S.
A. Equivalent Outstandings and aggregate Revolving Extensions of Credit of all Revolving Credit Lenders shall not exceed the aggregate Revolving Credit Commitments of all Revolving Credit Lenders; PROVIDED, FURTHER, that, for purposes of this clause (ii) only, the undrawn and unexpired amount of any outstanding Letter of Credit (in a face amount not to exceed $10,000,000) issued to support obligations under the French Revolver shall not be deemed to be a Revolving Extension of Credit;
(j) additional Indebtedness of Subsidiaries that are not Subsidiary Guarantors in an aggregate principal amount at any time outstanding not to exceed $5,000,000 5,000,000;
(k) guarantees made in excess the ordinary course of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to business by the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign of its Subsidiaries of the Borrower) not to exceed $1,000,000, provided obligations of any Subsidiary Guarantor that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any is a Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;; and
(ci) Indebtedness of the Borrower or any Subsidiary incurred to finance in respect of the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) Senior Subordinated Notes in an aggregate principal amount not exceeding as to the Borrower exceed $100,000,000 and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the amount Guarantee Obligations of Indebtedness outstanding under clauses (f) and (i) any Subsidiary Guarantor in respect of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof;
(f) Indebtedness of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect subordinated to the acquisition of Obligations to the same extent as such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereofIndebtedness.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;
Appears in 1 contract
Limitation on Indebtedness. Create, incur, assume or suffer to -------------------------- exist any Indebtedness, except:
(a) Indebtedness of the Borrower under the any Loan DocumentsParty pursuant to any Loan Document;
(b) Indebtedness (i) of the Borrower to a Wholly Owned Subsidiary, (ii) any Subsidiary Guarantor and of a Domestic any Wholly Owned Subsidiary Guarantor to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loanincluding, a Financing without limitation, Capital Lease or otherwiseObligations) secured by Liens permitted by Section 7.3(g) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) exceed $15,000,000 1,000,000 at any one time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12outstanding;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, hereof and listed on Schedule 7.2 7.2(d) and any refinancings, refundings, renewals or extensions thereof not increasing (without any increase in the principal amount thereof or any shortening of the maturity of any principal amount thereof);
(e) Guarantee Obligations made in the ordinary course of business by Holdings, the Borrower or any of its Subsidiaries of obligations of the Borrower or any Subsidiary Guarantor;
(f) unsecured Indebtedness owing to sellers of Towers and Tower Companies and constituting a Person which becomes portion of the consideration for the acquisition of such Towers or Tower Companies by the Borrower or a Subsidiary after Guarantor, so long as either (i) such Indebtedness is subordinated to the date hereof in an Obligations on substantially the terms of Schedule 7.2(f) and the aggregate principal amount at any time outstanding not exceeding of all Indebtedness under this clause (i) any one time outstanding shall not exceed $15,000,000, minus 5,000,000 or (ii) the sum of (A) the aggregate principal amount of Indebtedness outstanding under clauses (c) and (i) owing to such sellers is covered by Letters of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.Credit; and
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations Holdings permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;7.15(b).
Appears in 1 contract
Limitation on Indebtedness. CreateThe Company shall not, and shall not permit its Subsidiaries to, create, incur, assume or assume, guaranty, suffer to exist exist, or otherwise become or remain directly or indirectly liable with respect to, any Indebtedness, except:
(a) Indebtedness of the Borrower under the Loan Documentsoutstanding pursuant to this Agreement;
(b) Indebtedness (i) of after the Borrower to a Wholly Owned Subsidiary, (ii) of a Domestic Wholly Owned Subsidiary to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of pursuant to this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) the Indebtedness outstanding pursuant to the Borrower or any Subsidiary in Senior Agreement have been reduced by an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of $5,000,000 after the Borrower) Closing Date, additional Indebtedness not to exceed exceeding $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if 10,000,000 which may be designated senior to the Borrower or any Domestic SubsidiaryNote, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative AgentLender;
(c) Indebtedness of existing on the Borrower or any Subsidiary incurred to finance Closing Date and set forth in the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12Disclosure Schedules;
(d) Indebtedness of the Borrower secured by Liens permitted by Section 6.1(h), (i), (j), (k), (n) and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;(o); and
(e) Indebtedness outstanding on the date hereof, or incurred hereafter in connection with leases permitted pursuant to existing commitments or agreements, and, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereofSection 6.8;
(f) Indebtedness of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this represented by interest rate contracts or Contingent Obligations permitted by Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.6.7;
(g) Indebtedness constituting deposits to secure the performance evidenced by letters of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred credit in the ordinary course of business, an amount not to exceed $5,000,000 in the aggregate 500,000 at any one time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into issued to the ordinary course holders of business for hedging purposes and not for speculative purposes;the Amended Warrant issued to the Lender in full or partial redemption or purchase thereof; and
(i) Seller after the principal of all Indebtedness in under the Senior Agreement and this Agreement have been reduced by an aggregate principal amount at any time outstanding of $5,000,000 after the Closing Date, additional Indebtedness not exceeding (i) $15,000,000 minus (ii) 10,000,000 which may be designated senior to the sum of (A) Subordinated Note, on terms satisfactory to the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;Lender.
Appears in 1 contract
Samples: Senior Subordinated Loan Agreement (Precision Standard Inc)
Limitation on Indebtedness. Create, incur, assume or suffer to exist Incur any IndebtednessIndebtedness after the Petition Date, except:
(a) Indebtedness of the Borrower under the any Loan DocumentsParty pursuant to any Loan Document;
(b) Indebtedness (i) of the Borrower to a Wholly Owned Subsidiary, (ii) any Subsidiary and of a Domestic any Wholly Owned Subsidiary Guarantor to the Borrower or any other Subsidiary, (iii) of Servicios to Subsidiary Incurred after the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000Petition Date, provided that such Xxxxx Finance Company shall not be permitted to Incur Indebtedness referred pursuant to in clauses this subsection (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agentb);
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwisesecured by Liens permitted by Section 7.3(g) in an aggregate principal amount not exceeding as to exceed, when added to the Borrower and its Subsidiaries Capital Lease Obligations permitted under paragraph (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (id) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.127.2, $1,000,000;
(d) Capital Lease Obligations in an aggregate principal amount not to exceed, when added to the Indebtedness permitted under paragraph (c) of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notesthis Section 7.2, $1,000,000;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, hereof and listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof7.2(e);
(f) guarantees made in the ordinary course of business by the Borrower or any of its Subsidiaries of obligations of any Wholly Owned Subsidiary Guarantor;
(g) Indebtedness of the Borrower and its Subsidiaries to Commodity Credit Corporation on a Person which becomes a Subsidiary after the date hereof non-recourse basis in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) to exceed 80% of the sum fair market value of (A) the amount of Property securing such Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x7.3(f) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any one time outstanding;
(h) Indebtedness of Xxxxx Finance Company not to exceed $5,000,000 in aggregate principal amount outstanding at any time;
(i) the Pre-Petition Obligations and Adequate Protection Obligations;
(j) Indebtedness of the Permitted Sellers pursuant to the Receivables Securitization Program;
(k) Indebtedness under any Interest Rate Protection Agreements and Hedge Agreements entered into to protect the ordinary course Borrower or any of business for hedging purposes its Subsidiaries against fluctuations in interest rates and not for speculative purposes;; and
(il) Seller additional unsecured Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;2,500,000.
Appears in 1 contract
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower under the Loan Documentsthis Agreement;
(b) Indebtedness (i) of the Borrower to a Wholly Owned Subsidiary, (ii) any Guarantor and of a Domestic Wholly Owned Subsidiary any Guarantor to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative AgentGuarantor;
(c) Indebtedness of the Borrower or and any Subsidiary of its Subsidiaries incurred to finance the acquisition or construction of fixed or capital assets Capital Assets (whether pursuant to a loan, a Financing Capital Lease or otherwise) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) $15,000,000 10,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12outstanding;
(d) short-term Indebtedness of Foreign Subsidiaries owed to third Persons other than the Borrower and its Subsidiaries under incurred for working capital purposes in an aggregate principal amount, together with the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notesaggregate amount of all investments made pursuant to Section 7.11(h), not exceeding as to such Foreign Subsidiaries $15,000,000, at any time outstanding;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, hereof and listed on Schedule 7.2 7.02 and any refinancings, refundings, renewals or extensions thereof thereof; provided that the amount of such Indebtedness is not increasing increased at the principal time of such refinancing, refunding, renewal or extension except by an amount thereofequal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder;
(f) Indebtedness of a Person corporation which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12hereof, provided that (xi) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (yii) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.;
(g) additional unsecured Indebtedness constituting deposits to secure of the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred Borrower not exceeding $2,500,000 in the ordinary course of business, not to exceed $5,000,000 in the aggregate principal amount at any one time outstanding;
(h) other Indebtedness of the Borrower or any Subsidiary incurred with the prior written consent of the Administrative Agent and subordinated to the Indebtedness on terms satisfactory to the Administrative Agent hereunder in its sole discretion, and which shall not exceed $20,000,000 in aggregate principal amount at any one time outstanding;
(i) Indebtedness of the Borrower or any Subsidiary under Interest Rate Protection Agreements and Hedge Agreements any Swap Contracts; provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for hedging purposes the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for speculative purposespurposes of speculation or taking a "market view;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus " and (ii) such Swap Contracts do not contain any provision exonerating the sum of (A) non-defaulting party from its obligation to make payments on outstanding transactions to the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12defaulting party;
(j) Indebtedness of the Borrower under the High Yield Bonds in an aggregate outstanding principal amount not to exceed $150,000,000, and Indebtedness of the Borrower used to refinance, refund, renew, extend or exchange the High Yield Bonds, including in connection with any Exchange Offer; provided that (A) no Default or Event of Default exists and is continuing at the time of such refinancing, refunding, renewal or extension above or would be caused thereby, (B) the terms and conditions of the replacement notes and the documents evidencing such refinancing, refunding, renewal or extension shall be in form and substance no more restrictive than this Agreement as reasonably agreed by the Administrative Agent and (C) the principal amount of Guarantee Obligations permitted the replacement notes shall not exceed the principal amount set forth above on the date of such refinancing plus an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by Section 7.4an amount equal to any existing commitments unutilized thereunder; and
(k) without duplication, Indebtedness not otherwise consisting of investments permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;under Section 7.11.
Appears in 1 contract
Limitation on Indebtedness. Create, At any time incur, assume create, assume, or suffer to exist any Indebtedness, Indebtedness except:
(a) Indebtedness of the Borrower amounts outstanding under the Loan Documents;
(b) purchase money Indebtedness (i) on equipment purchased in the ordinary course of the Borrower to a Wholly Owned Subsidiarybusiness and Capital Lease Obligations not exceeding, (ii) of a Domestic Wholly Owned Subsidiary to the Borrower together with any purchase money Indebtedness or any other SubsidiaryCapital Lease Obligations listed on Schedule 6.2, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed of $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent5,000,000;
(c) Indebtedness existing as of the Borrower date hereof described on Schedule 6.2 (including, except with respect to seller notes, any extensions or any Subsidiary incurred to finance the acquisition renewals or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) refinancings thereof provided there is no increase in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and thereof or other significant change in the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12terms thereof);
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness in an aggregate amount not to exceed $2,500,000 at any one time outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof;
(f) Indebtedness of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12Closing Date, provided that (xi) such Indebtedness existed at the time such corporation Person became a Subsidiary and was not created in anticipation thereof and of the acquisition, (yii) immediately after giving effect to the acquisition of such corporation Person by the Borrower or a Subsidiary, no Default or Event of Default shall have occurred and be continuingcontinuing and (iii) the Borrower has complied with Section 5.15 hereof;
(e) earn-outs in connection with Permitted Acquisitions consummated after the date hereof (but not seller notes which, for any Permitted Acquisition consummated on or after the Closing Date, shall only be permitted to the extent that they constitute Subordinated Debt);
(f) unsecured Indebtedness of the Borrower and any refinancings, refundings, renewals or extensions thereof not increasing the its Subsidiaries in an aggregate principal amount thereof.not to exceed $500,000 at any time outstanding the proceeds of which are to be used for the Borrower’s and its Subsidiaries’ general corporate purposes;
(g) Subordinated Debt;
(h) subject to Section 6.6, Indebtedness constituting deposits owed to secure a Loan Party or any other Subsidiary by another Loan Party or any other Subsidiary;
(i) other Indebtedness in respect of letters of credit or bank guaranties issued for the performance account of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred Foreign Subsidiaries in the ordinary course of business, an aggregate amount available to be drawn not to exceed $5,000,000 in the aggregate 1,000,000 at any time outstanding;
(hj) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into Guaranty Obligations incurred in the ordinary course of business for hedging purposes and not for speculative purposes;
by the Parent or any of its Subsidiaries of (i) Seller Indebtedness in an aggregate principal amount at obligations of any time outstanding not exceeding (i) $15,000,000 minus Loan Party or (ii) any Indebtedness of the sum Parent or any of its Subsidiaries permitted under this Section 6.2 (Aexcept (x) the amount of as regards Indebtedness outstanding under clauses clause (c) above, only if and to the extent such Indebtedness was guaranteed on the Closing Date and (fy) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and Subordinated Debt under clause (Bg) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4above); and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not relating to exceed $5,000,000;Hedge Agreements entered into for non-speculative purposes.
Appears in 1 contract
Samples: Credit Agreement (Kenexa Corp)
Limitation on Indebtedness. CreateNo Credit Party shall, and no Credit Party shall suffer or permit any of its Subsidiaries to, create, incur, assume assume, permit to exist, or suffer to exist otherwise become or remain directly or indirectly liable with respect to, any Indebtedness, except:
(a) Indebtedness of the Borrower under the Loan DocumentsObligations;
(b) Indebtedness consisting of Contingent Obligations described in clause (i) of the Borrower definition of Indebtedness and permitted pursuant to a Wholly Owned Subsidiary, (ii) of a Domestic Wholly Owned Subsidiary to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative AgentSection 5.9;
(c) Indebtedness of existing on the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) Closing Date and set forth in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12Schedule 5.5 including Permitted Refinancings thereof;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(ei) Indebtedness outstanding on to ASD Specialty Healthcare, Inc. not to exceed $20,000,000 in the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof;
(f) Indebtedness of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (isecured solely by Liens permitted by Section 5.1(h) $15,000,000, minus and (ii) the sum of (A) the amount of other Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 20,000,000 in the aggregate at any time outstanding, consisting of Capital Lease Obligations or secured solely by Liens permitted by Section 5.1(h) and Permitted Refinancings thereof;
(e) unsecured intercompany Indebtedness permitted pursuant to Section 5.4(b);
(f) the AmerisourceBergen Indebtedness;
(g) the AHF Earnout in an aggregate amount not to exceed $2,000,000;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and MedPro Earnout in an aggregate amount not for speculative purposes;to exceed $11,500,000; and
(i) Seller Indebtedness the BioRx Earnout in an aggregate principal amount at any time outstanding due in cash not exceeding (i) to exceed $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.122,000,000;
(j) unsecured Indebtedness of the Borrower or any of its Subsidiaries consisting of Contingent Acquisition Consideration; provided that the maximum aggregate amount payable with respect to all such Contingent Acquisition Consideration does not exceed $12,500,000 in the form aggregate at any time outstanding (assuming the remaining maximum performance standards related thereto are satisfied, except to the extent all or any portion thereof becomes a fixed, matured or earned amount, in which case such amount shall be deemed the actual amount of Guarantee Obligations permitted by Section 7.4; andsuch Contingent Acquisition Consideration);
(k) Indebtedness incurred in respect of credit cards, credit card processing services, debit cards, stored value cards, purchase cards (including “procurement cards” or “P-cards”) and cash management services; and
(l) other unsecured Indebtedness owing to Persons that are not otherwise permitted by Affiliates of the foregoing clauses (a) through (j) Credit Parties not exceeding $2,000,000 in an the aggregate principal amount at any time outstanding of not to exceed $5,000,000;outstanding.
Appears in 1 contract
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower created under the any Loan DocumentsDocument;
(b) Unsecured Indebtedness of any Loan Party (i) of other than Capital Corp. and Xxxx Golf, unless the Borrower to a Wholly Owned Subsidiary, (ii) of a Domestic Wholly Owned Subsidiary to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount proceeds of such Indebtedness outstanding on are necessary for the date of this Agreement and (iv) organizational maintenance of any Foreign Subsidiary (other than Serviciossuch party) to the Borrower or any Subsidiary other Loan Party; provided, that in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that each case such Indebtedness referred to in clauses (iii) is evidenced by, and (iv) hereof, if subject to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to of, the Administrative AgentSubordinated Intercompany Note;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwisesecured by Liens permitted by Section 7.3(j) in an aggregate principal amount not exceeding as to less than 50% and not more than 100% of the Borrower and its Subsidiaries (i) $15,000,000 fair market value of the Aircraft determined at any the time outstanding minus (ii) of the amount incurrence of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12such Indebtedness;
(d) Indebtedness of (other than the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(eIndebtedness referred to in Section 7.2(f)) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, Amended and Restated Effective Date and listed on Schedule 7.2 7.2(d) and any refinancings, refundings, renewals or extensions thereof not increasing (without any increase in the principal amount thereof or any shortening of the maturity of any principal amount thereof);
(e) Unsecured Guarantee Obligations made in the ordinary course of business by any Loan Party of obligations of the Borrower or any other Loan Party (other than Capital Corp. and Xxxx Golf);
(f) (i) Indebtedness of a Person which becomes a Subsidiary after the date hereof Borrower and Capital Corp. created under the 2010 Notes Indenture in respect of the 2010 Notes in an aggregate principal amount at not to exceed $10,000,000 (reduced by any principal payments from time outstanding not exceeding (ito time made thereon) $15,000,000, minus and Guarantee Obligations of any Loan Party in respect thereto; and (ii) Indebtedness of the sum Borrower and Capital Corp. created under the 2014 Notes Indenture in respect of the 2014 Notes in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this subclause (A) the amount of Indebtedness outstanding under clauses ii), not to exceed $1,700,000,000 (creduced by any principal payments from time to time made thereon) and (i) Guarantee Obligations of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created any Loan Party in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.respect thereto;
(g) Indebtedness constituting deposits to secure the performance of bids(including, trade contracts (other than for borrowed money)without limitation, leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred Capital Lease Obligations) secured by Liens permitted by Section 7.3(s) in the ordinary course of business, an aggregate principal amount not to exceed $5,000,000 in 30,000,000 (or, from and after the aggregate Phase II Opening Date, $100,000,000) at any time outstanding;
(h) Indebtedness to any employees of Wynn Resorts or its Wholly Owned Subsidiaries (or their estates or trusts) incurred in connection with the repurchase, redemption or other acquisition or retirement for value of Capital Stock of Wynn Resorts permitted pursuant to Section 7.6(e); provided, that such Indebtedness outstanding at any time, when aggregated with the aggregate of all payments previously made under Interest Rate Protection Agreements Section 7.6(e), will not exceed $10,000,000;
(i) Subordinated Debt not to exceed an aggregate of $25,000,000 at any time outstanding; provided, that on and Hedge Agreements entered into after the Phase II Opening Date, the aggregate amount of Subordinated Debt incurred by the Borrower shall not be limited so long as the Borrower and its Subsidiaries shall be in pro forma compliance with each of the covenants set forth in Section 7.1 as of the most recent Quarterly Date of the Borrower after giving pro forma effect to any such Subordinated Debt as if such Subordinated Debt was incurred (and the repayment of Indebtedness required by the following proviso made) on the first day of the period being tested on such Quarterly Date under the covenants set forth in Section 7.1; and provided further, that in each such case the Net Cash Proceeds of such Subordinated Debt shall be applied within two Business Days of the receipt of such proceeds to the prepayment of the Obligations in accordance with Section 2.12(a);
(j) prior to the Phase I Final Completion Date (to the extent related to the development and construction of the Phase I Project) and prior to the Phase II Final Completion Date (to the extent related to the development and construction of the Phase II Project), Indebtedness in respect of performance bonds, guaranties, commercial or standby letters of credit (other than Letters of Credit), bankers’ acceptances or similar instruments issued by a Person other than Wynn Resorts or any Subsidiary of Wynn Resorts for the benefit of a trade creditor of any Loan Party, in an aggregate amount not to exceed $40,000,000 at any time outstanding so long as (i) such Indebtedness is incurred in the ordinary course of business for hedging purposes and not for speculative purposes(ii) the obligations of any Loan Party, as the case may be, supported by such performance bonds, guaranties, trade letters of credit, bankers’ acceptances or similar instruments (1) consist solely of payment obligations with respect to costs incurred in accordance with the Phase I Project Budget or the Phase II Project Budget, as the case may be, which would otherwise be permitted to be paid by the applicable Loan Party pursuant to the Disbursement Agreement, (2) are secured and (3) are secured solely by Liens permitted by Section 7.3(u);
(k) Indebtedness in respect of performance bonds, guaranties, commercial or standby letters of credit (other than Letters of Credit), bankers’ acceptances or similar instruments issued by a Person other than Wynn Resorts or any Affiliate of Wynn Resorts for the benefit of a trade creditor of any Loan Party, in an aggregate amount not to exceed $25,000,000 at any time outstanding so long as such Indebtedness (i) Seller is incurred in the ordinary course of business; (ii) does not consist of payment obligations with respect to Project Costs related to the Phase II Project; and (iii) if secured, are secured solely by Liens permitted by Section 7.3(v);
(l) Indebtedness, the Net Cash Proceeds of which are used for the development, construction and opening of an Additional Entertainment Facility and/or Retail Facility, in an aggregate principal amount (or original accreted value, as applicable) at any time not to exceed 66⅔% of the aggregate cost of such Additional Entertainment Facility and/or Retail Facility; provided that net cash proceeds have been received by the Borrower as a contribution to its equity capital in an amount equal to at least 33⅓% of the projected aggregate cost of such Additional Entertainment Facility and/or Retail Facility, which amount has been irrevocably committed substantially concurrent with the date of incurrence of such Indebtedness for use to develop, construct and open such Additional Entertainment Facility and/or Retail Facility; provided, further, the Borrower shall cause equity capital to be contributed to the Borrower such that 33⅓% of the costs related to the Additional Entertainment Facility and/or Retail Facility shall have been funded with equity capital;
(m) additional Indebtedness in an aggregate principal amount (for all Loan Parties) not to exceed $50,000,000 at any time outstanding outstanding; and
(n) Indebtedness of the Borrower and/or Capital Corp. in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any such Indebtedness, not exceeding to exceed the lesser of (x) $500,000,000, (y) the amount of such Indebtedness permitted to be incurred under the 2014 Notes Indenture by the Loan Parties on the date that such Indebtedness is initially issued or obtained in reliance on this clause (n) in accordance with clause (i) $15,000,000 minus below and (z) the principal amount of Indebtedness initially issued or obtained in reliance on this clause (n) in accordance with clause (i) below (in any such case, reduced by any principal payments from time to time made thereon) and Guarantee Obligations of any Loan Party with respect thereto (the “Senior Unsecured Debt”); provided that (i) the Senior Unsecured Debt shall initially be issued by the Borrower and/or Capital Corp. in a single issuance (and thereafter, except with respect to Permitted Refinancing Indebtedness related thereto, no other Indebtedness shall be issued in reliance on this clause (n)), (ii) the sum of (A) Senior Unsecured Debt shall have a final maturity date not earlier than the amount of Indebtedness outstanding under clauses (c) final maturity date of, and have a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the 2014 Notes and (fiii) subject to clause (ii) above, the terms and conditions of this Section 7.2the Senior Unsecured Debt (including the pricing, covenants and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness restrictions contained in the agreements governing the Senior Unsecured Debt) shall be in form and substance satisfactory to the Majority of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;Arrangers.
Appears in 1 contract
Samples: Credit Agreement (Wynn Resorts LTD)
Limitation on Indebtedness. CreateNo Loan Party shall, or permit any of its Subsidiaries to, create, incur, assume or assume, suffer to exist exist, or otherwise become or remain directly or indirectly liable with respect to, any Indebtedness, except:
(a) Indebtedness of incurred pursuant to this Agreement or the Borrower under the other Loan Documents;
(b) Indebtedness (i) consisting of the Borrower Contingent Obligations permitted pursuant to a Wholly Owned Subsidiary, (ii) of a Domestic Wholly Owned Subsidiary to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative AgentSection 8.08;
(c) Indebtedness incurred in connection with the issuance of Derivative Contracts permitted under Section 8.10 hereof;
(d) specific Indebtedness outstanding on the Borrower date hereof and listed in Schedule 8.05 hereto; and
(e) Senior Unsecured Notes and guaranties given by the Company, the Parent or any Subsidiary incurred that is a guarantor hereunder with respect thereto; provided that (i) the principal amount of such Indebtedness shall not exceed $350,000,000 in the aggregate, and (ii) after giving pro forma effect to finance such issuance and any attendant automatic reduction in the acquisition or construction Borrowing Base (and any resulting mandatory prepayment) required by the second proviso of fixed or capital assets this clause (whether e), Parent shall be in compliance with Sections 8.14, 8.15 and 8.16 for the four-fiscal quarter period most recently ended, further provided that, the Borrowing Base shall automatically reduce on the date of such issuance of Senior Unsecured Notes by an amount equal to 25% of the stated principal amount of such Senior Unsecured Notes;
(f) Indebtedness constituting Investments that are permitted pursuant to a loanSection 8.04(d);
(g) Capitalized Lease Obligations and purchase money Indebtedness in an aggregate principal amount not to exceed $1,000,000 outstanding at any time;
(h) Assumed Indebtedness, a Financing Lease or otherwisein an aggregate principal not to exceed $1,000,000 outstanding at any time; and
(i) Unsecured Indebtedness not otherwise permitted under Sections 8.05
(a) (h) above in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof;
(f) Indebtedness of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate 10,000,000 at any time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;.
Appears in 1 contract
Limitation on Indebtedness. CreateThe Borrower will not, and will not suffer or permit any of its Subsidiaries to, create, incur, assume or issue, assume, suffer to exist exist, or otherwise become or remain directly or indirectly liable with respect to, any Indebtedness, except:
(a) Indebtedness of the Borrower under the Loan Documents;
(b) Indebtedness (i) of the Borrower to a Wholly Owned Subsidiary, (ii) of a Domestic Wholly Owned Subsidiary to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding existing on the date of this Agreement Effective Date and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, listed described on Schedule 7.2 8.05(a) and any refinancings, refundings, renewals or extensions thereof not increasing (without increasing, or shortening the maturity of, the principal amount thereofof such Indebtedness);
(fb) Indebtedness incurred pursuant to any Loan Document;
(c) Indebtedness of a Person which becomes a any Credit Party owing to the Borrower or any Wholly-Owned Subsidiary of the Borrower, provided that any such Indebtedness (i) is permitted to be advanced by the Borrower or such Wholly-Owned Subsidiary pursuant to the provisions of Section 8.10 and (ii) is not subordinated to any other Indebtedness of the obligor (other than the Obligations);
(d) so long as no Event of Default exists both before and after giving effect to the date hereof incurrence thereof, Indebtedness of the Borrower and/or its Subsidiaries secured by Liens permitted by Section 8.02(h);
(e) so long as no Event of Default exists both before and after giving effect to the incurrence thereof, (i) Permitted Borrower Unsecured Indebtedness in an aggregate principal amount not to exceed $10,000,000 outstanding at any time time, such maximum amount to be reduced by the aggregate principal amount of “Permitted Borrower Unsecured Indebtedness” (as such term is defined in the Nexstar Credit Agreement) of any Nexstar Entity outstanding not exceeding (i) $15,000,000at any time, minus and (ii) Permitted Seller Subordinated Indebtedness, in an aggregate principal amount not to exceed $25,000,000 outstanding at any time, such maximum permitted amount to be reduced by the sum aggregate principal amount of “Permitted Seller Subordinated Indebtedness” (as such term is defined in the Nexstar Credit Agreement) of any Nexstar Entity outstanding at such time, provided that prior to the incurrence of any such Indebtedness, the Borrower shall have delivered to the Administrative Agent (x) a certificate of the Borrower executed on its behalf by a Responsible Officer of the Borrower certifying (A) compliance with each of the amount financial covenants contained in Section 8.09 of the Nexstar Credit Agreement, based on financial projections of the Mission Entities, the Nexstar Borrower and its Subsidiaries attached to such certificate which have been prepared on a Pro Forma Basis for the period from the proposed date of the incurrence of such Indebtedness outstanding under clauses (c) and (i) to the Stated Maturity Date of this Section 7.2 the latest to mature of the Loans and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred exists or will exist both before and be continuingafter giving effect to the incurrence of such Indebtedness and (y) a Pro Forma Compliance Certificate prepared as of the date of the incurrence of such Indebtedness, giving effect to the incurrence of such Indebtedness;
(f) so long as no Event of Default exists both before and any refinancingsafter giving effect to the incurrence thereof, refundings, renewals Interest Rate Protection Agreements required hereunder or extensions thereof in respect of Indebtedness otherwise permitted hereby so long as such agreements are not increasing entered into for speculative purposes and the principal amount thereof.Borrower is in compliance with Section 7.15 after giving effect thereto;
(g) Capital Lease Obligations and other Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than Indebtedness for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations ) of a like nature that are incurred the Borrower and/or its Subsidiaries in the ordinary course of business, an amount not to exceed $5,000,000 in the aggregate for the Borrower and its Subsidiaries at any time outstanding;
(h, such maximum amount to be reduced by the aggregate principal amount of Indebtedness of any Nexstar Entity permitted under Section 8.05(g) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into of the ordinary course of business for hedging purposes and not for speculative purposes;Nexstar Credit Agreement outstanding at any time; and
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding Guaranty Obligations of the Mission Entities (iother than the Borrower) $15,000,000 minus with respect to Permitted Nexstar Subordinated Indebtedness, (ii) subordinated Guaranty Obligations of the sum Mission Entities (other than the Borrower) with respect to Permitted Seller Subordinated Indebtedness incurred by the Borrower and subordinated Guaranty Obligations of the Mission Entities with respect to Permitted Seller Subordinated Indebtedness (A) as that term is defined in the amount of Indebtedness outstanding under clauses (c) Nexstar Credit Agreement), and (fiii) Guaranty Obligations of this Section 7.2, the Mission Entities (other than the direct and any refinancings, refundings, renewals indirect Subsidiaries of the Borrower or extensions thereof not increasing the principal amount thereof Nexstar Borrower) with respect to Permitted Borrower Unsecured Indebtedness and Guaranty Obligations of the Mission Entities (Bother than the direct and indirect Subsidiaries of the Borrower or the Nexstar Borrower) the amount of indebtedness attributable with respect to sale and leaseback transactions permitted pursuant to Section 7.12;
Permitted Borrower Unsecured Indebtedness (j) Indebtedness as that term is defined in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;Nexstar Credit Agreement).
Appears in 1 contract
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower under the any Group Member pursuant to any Loan DocumentsDocument;
(b) Indebtedness (i) of any of the Borrower to or a Wholly Owned Subsidiary, (ii) of a Domestic Wholly Owned Subsidiary Guarantor to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative AgentGroup Member;
(c) Indebtedness of the Borrower or any Restricted Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loanincluding, a Financing without limitation, Capital Lease or otherwiseObligations) secured by Liens permitted by Section 6.3(g) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) exceed $15,000,000 10,000,000 at any one time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12outstanding;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, hereof and listed on Schedule 7.2 6.2(d) and any refinancings, refundings, renewals or extensions thereof not increasing (without any increase in the principal amount thereof or any shortening of the maturity of any principal amount thereof);
(e) Guarantee Obligations made in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries of obligations of the Borrower or any Subsidiary Guarantor;
(f) unsecured Indebtedness owing to sellers of Qualified Tower Portfolios and constituting a Person which becomes portion of the consideration for the acquisition of such Qualified Tower Portfolios by the Borrower or a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000Guarantor, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that so long as (x) such Indebtedness existed at (excluding any deferred purchase consideration which is contingent) is subordinated to the time such corporation became a Subsidiary and was not created in anticipation thereof and Obligations on substantially the terms of Schedule 6.2(f), (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the aggregate principal amount thereof.of all Indebtedness under this Section 6.2(f) at any one time outstanding shall not exceed $30,000,000 (excluding any deferred purchase consideration which is contingent) and (z) the aggregate amount of all deferred purchase consideration which is contingent under this Section 6.2(f) at any one time outstanding shall not exceed $20,000,000; and
(g) Indebtedness constituting deposits owed to credit card companies which are used to pay operating expenses associated with Towers and the Services Business and letters of credit to secure such Indebtedness in an aggregate amount not exceeding $1,000,000 at any one time outstanding; provided, however, that none of the performance Restricted Subsidiaries owning, leasing, operating or managing Towers may incur any of bids, trade contracts the Indebtedness permitted under clause (e) above (other than for borrowed money), leases, statutory obligations, pursuant to reimbursement obligations in respect of bond surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred arrangements in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and or clause (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and above (B) the amount of indebtedness attributable to sale and leaseback transactions permitted other than pursuant to Section 7.12;
(j) Indebtedness any deferred purchase consideration in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;earn-outs which is contingent).
Appears in 1 contract
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, Indebtedness except:
(a) Indebtedness of the Borrower under the any Loan DocumentsParty pursuant to any Loan Document;
(b) Indebtedness (i) of the Borrower to a Wholly Owned Subsidiary, (ii) any Subsidiary and of a Domestic Wholly Owned any Subsidiary to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, hereof and listed on Schedule 7.2 7.5(c) (including the Existing Senior Subordinated Notes) and any refinancings, refundings, renewals or extensions thereof not increasing (other than of the Existing Senior Subordinated Notes) (without increasing, or shortening the maturity of, the principal amount thereof);
(d) Indebtedness (including, without limitation, Capital Lease Obligations) secured by Liens permitted by subsection 7.1(a) in an aggregate principal amount not to exceed $75,000,000 at any one time outstanding;
(e) unsecured Indebtedness of the Borrower having no scheduled principal payments or prepayments prior to the date which is six months after the Maturity Date; provided any such Indebtedness may be incurred only if (x) the Borrower shall be in compliance, on a pro forma basis after giving effect to such incurrence, with the covenants contained in subsections 6.9 and 6.10 recomputed as at the last day of the most recently ended fiscal quarter of the Borrower as if such incurrence had occurred on such day and (y) there shall be no Event of Default;
(f) additional Indebtedness of a Person which becomes a Subsidiary after the date hereof Borrower or any of its Subsidiaries in an aggregate principal amount (for the Borrower and all Subsidiaries) not to exceed $50,000,000 at any one time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.outstanding;
(g) Indebtedness constituting deposits to secure the performance of bidsunder Hedging Agreements, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature provided that such Hedging Agreements are incurred entered into in the ordinary course of business, not business to exceed $5,000,000 hedge or mitigate risks as to which the Borrower or any of its Subsidiaries reasonably believes it is exposed in the aggregate at any time outstandingconduct of its business or the management of its liabilities;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposescontemplated by subsection 7.4(c);
(i) Seller Indebtedness incurred by any Foreign Subsidiary, provided that the aggregate principal amount of all such Indebtedness of all Foreign Subsidiaries which are not Subsidiary Guarantors or Foreign Subsidiary Borrowers shall not exceed $60,000,000 or the equivalent thereof at any one time outstanding (any Indebtedness incurred pursuant to this subsection 7.5(i), “Permitted Foreign Debt”); and
(j) Indebtedness of any Person that becomes a Subsidiary of the Borrower in a Permitted Acquisition or Indebtedness otherwise assumed by the Borrower or any of its Subsidiaries in connection with a Permitted Acquisition in an aggregate principal amount for all such Indebtedness not to exceed $30,000,000 at any one time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12outstanding;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness incurred by any Foreign Subsidiary supported by a Letter of Credit (“Supported Foreign Indebtedness”), provided that the aggregate principal amount of all such Indebtedness shall not otherwise permitted by exceed $75,000,000 at any one time outstanding;
(l) to the foregoing clauses (a) through (j) extent that the Receivables Subsidiary’s or any other Person’s obligation to purchase or acquire Sold Receivables under any Receivables Purchase Facility is deemed to be an obligation to lend money to the Borrower or such Receivables Subsidiary, Indebtedness of the Borrower, any Subsidiary of the Borrower or such Receivables Subsidiary under any Receivables Purchase Facility in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;400,000,000 at any one time outstanding; and
(m) seller-financed Indebtedness incurred by the Borrower or any of its Subsidiaries in an aggregate principal amount not to exceed $100,000,000 at any one time outstanding.
Appears in 1 contract
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower under the any Loan DocumentsParty pursuant to any Loan Document;
(b) Indebtedness (i) of the Borrower to a Wholly Owned Subsidiary, (ii) any Subsidiary and of a Domestic any Wholly Owned Subsidiary Guarantor to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwisesecured by Liens permitted by Section 7.3(g) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) exceed $15,000,000 7,500,000 at any one time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12outstanding;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated NotesCapital Lease Obligations in an aggregate principal amount not to exceed $5,000,000 at any one time outstanding;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, Closing Date and listed on Schedule 7.2 7.2(e) and any refinancings, refundings, renewals or extensions thereof not increasing (without any increase in the principal amount thereof);
(f) guarantees made in the ordinary course of business by the Borrower or any of its Subsidiaries of obligations of any Wholly Owned Subsidiary Guarantor;
(g) Indebtedness of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount not to exceed $900,000 owed to the Empire State Development Authority, and any refinancings, refundings, renewals or extensions thereof (without any increase in the principal amount thereof);
(h) Indebtedness of the Borrower or its Subsidiaries on account of industrial revenue bonds in an aggregate principal amount not to exceed $15,000,000 at any one time outstanding;
(i) guarantees made in the ordinary course of business by the Borrower or any of its Subsidiaries of lease obligations of their customers in respect of equipment sold by the Borrower or any of its Subsidiaries to a third party and then leased to such customer in an aggregate amount outstanding at any time outstanding not exceeding to exceed $10,000,000;
(ij) $15,000,000, minus Indebtedness in respect of letters of credit (ii) the sum of (A) the amount of Indebtedness outstanding not otherwise permitted under clauses (c) and (i) of this Section 7.2 and 7.2) outstanding in the ordinary course of business in an aggregate face amount not to exceed $3,000,000;
(Bk) the amount Indebtedness of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a any Wholly Owned Foreign Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower or any other Subsidiary (so long as no Default or Event of Default shall have occurred and be continuingcontinuing at the time of the incurrence of such Indebtedness), provided that (x) the requirements of Section 6.9 are satisfied and (y) the aggregate principal amount of such Indebtedness at any time outstanding shall not exceed $25,000,000 less the sum of (A) the aggregate fair market value of any Property Disposed of to a Wholly Owned Foreign Subsidiary pursuant to Section 7.5(e) and (B) the aggregate amount of all investments made in such Foreign Subsidiaries pursuant to Section 7.8(i), and provided, further, that any Indebtedness permitted by this Section 7.2(k) shall be evidenced by a note or similar instrument and pledged in accordance with Section 6.9 and the Guarantee and Collateral Agreement;
(l) additional Indebtedness of the Borrower or any of its Subsidiaries in an aggregate principal amount (for the Borrower and all Subsidiaries) not to exceed $15,000,000 at any one time outstanding;
(m) Indebtedness in an aggregate principal amount not to exceed $24,000,000 incurred in connection with its acquisition (the "Largo Acquisition") of approximately 213,000 square feet of facilities in Largo, Florida, including certain buildings previously leased by Linvatec, and any refinancings, refundings, renewals or extensions thereof not increasing (without an increase in the principal amount thereof.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;
(hn) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness incurred in connection with a Receivables Transfer Program in an aggregate principal amount at any time outstanding not exceeding (i) to exceed $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.465,000,000; and
(ko) Indebtedness not otherwise permitted by Permitted Subordinated Indebtedness, provided that the foregoing clauses (a) through (j) Borrower and its Subsidiaries are in an aggregate principal amount compliance with the financial covenants contained in Section 7.1, computed on a pro forma basis as at any time outstanding the last day of not to exceed $5,000,000;the most recently ended fiscal quarter of the Borrower for which financial statements are available.
Appears in 1 contract
Samples: Credit Agreement (Conmed Corp)
Limitation on Indebtedness. CreateThe Borrower shall not, and shall not permit any Subsidiary (other than AMRC Holdings and Subsidiaries of AMRC Holdings) to, create, incur, assume or assume, guaranty, suffer to exist exist, or otherwise become or remain directly or indirectly liable with respect to, any Indebtedness, exceptexcept for:
(a) Indebtedness accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the Borrower under borrowing of money) incurred in the Loan Documentsordinary course of the Borrower's or the Subsidiary's business, as the case may be, in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for in accordance with GAAP;
(b) Indebtedness represented by Rate Contracts;
(ic) income taxes payable and deferred taxes;
(d) accrued expenses and deferred income;
(e) Indebtedness under the Senior Notes in an aggregate principal amount not to exceed $335,000,000 and Contingent Obligations of the Borrower and of AMSC Acquisition Company's Subsidiaries in respect thereof (such Contingent Obligations of the Borrower to a Wholly Owned Subsidiarybe subordinated as described in the Offering Memorandum);
(f) Indebtedness under the Revolving Credit Agreement;
(g) Contingent Obligations incurred in connection with any lease financing of mobile communications terminals, not exceeding $5,000,000 in the aggregate in principal amount;
(iih) Indebtedness outstanding on the Effective Date and identified on Schedule 5.25; 50
(i) Indebtedness under the Financial Management Account Line of a Domestic Wholly Owned Subsidiary Credit of the Borrower payable to the Borrower or any other Subsidiaryorder of Wachovia Bank of North Carolina, (iii) of Servicios to the Borrower or any Subsidiary N.A., in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, 2,500,000; and, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof;
(f) Indebtedness of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness incurred to finance in-orbit insurance in the form of Guarantee Obligations permitted by Section 7.4an aggregate amount outstanding at any time not to exceed $6,000,000;
(k) Vendor Financing Indebtedness in an aggregate amount outstanding at any time not to exceed $10,000,000; and
(kl) any other Indebtedness not otherwise permitted by incurred after the foregoing clauses (a) through (j) in an Effective Date; provided that the aggregate outstanding principal amount of all such Indebtedness shall not at any time outstanding of not to exceed $5,000,000;15,000,000.
Appears in 1 contract
Samples: Term Credit Agreement (American Mobile Satellite Corp)
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower under the any Loan DocumentsParty pursuant to any Loan Document;
(b) Indebtedness (i) of the Parent Borrower to a Wholly Owned Subsidiary, (ii) any Subsidiary and of a Domestic Wholly any Wholly-Owned Subsidiary Guarantor to the Parent Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwisesecured by Liens permitted by Section 7.3(g) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) exceed $15,000,000 at any one time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12outstanding;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated NotesCapital Lease Obligations in an aggregate principal amount not to exceed $10,000,000 at any one time outstanding;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, Closing Date and listed on Schedule 7.2 7.2(e) and any refinancings, refundings, renewals or extensions thereof not increasing (without any increase in the principal amount thereof);
(f) guarantees made in the ordinary course of business by the Parent Borrower or any of its Subsidiaries of obligations of any Wholly-Owned Subsidiary Guarantor;
(g) Indebtedness of a Person which becomes a Subsidiary after the date hereof Parent Borrower or its Subsidiaries on account of industrial revenue bonds in an aggregate principal amount not to exceed $30,000,000 at any one time outstanding;
(h) guarantees made in the ordinary course of business by the Parent Borrower or any of its Subsidiaries of lease obligations of their customers in respect of equipment sold by the Parent Borrower or any of its Subsidiaries to a third party and then leased to such customer in an aggregate amount outstanding at any time outstanding not exceeding to exceed $20,000,000;
(i) $15,000,000, minus Indebtedness in respect of letters of credit (ii) the sum of (A) the amount of Indebtedness outstanding not otherwise permitted under clauses (c) and (i) of this Section 7.2 and 7.2) outstanding in the ordinary course of business in an aggregate face amount not to exceed $10,000,000; Back to Table of Contents (Bj) the amount Indebtedness of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a any Wholly-Owned Foreign Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Parent Borrower or any other Subsidiary (so long as no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing continuing at the principal amount thereof.
(g) Indebtedness constituting deposits to secure time of the performance incurrence of bids, trade contracts (other than for borrowed moneysuch Indebtedness), leases, statutory obligations, surety provided that (x) the requirements of Section 6.9 are satisfied and appeal bonds and performance bonds and other obligations of a like nature that are incurred in (y) the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount of such Indebtedness at any time outstanding shall not exceeding exceed the greater of $40,000,000 or 10% of the Consolidated Total Tangible Assets (imeasured on the date of incurrence of the most recent of such Indebtedness) $15,000,000 minus (ii) less the sum aggregate fair market value of (A) the amount any Property Disposed of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted a Wholly-Owned Foreign Subsidiary pursuant to Section 7.12;
(j) 7.5(e), and provided, further, that any Indebtedness in the form of Guarantee Obligations permitted by this Section 7.4; and
(k7.2(j) Indebtedness not otherwise permitted shall be evidenced by a note or similar instrument and pledged in accordance with Section 6.9 and the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000Guarantee and Collateral Agreement;
Appears in 1 contract
Samples: Credit Agreement (Conmed Corp)
Limitation on Indebtedness. Create(a) The Company will not, incurand will not permit any of its Restricted Subsidiaries to, assume directly or suffer to exist indirectly, Incur any Indebtedness (including Acquired Indebtedness); provided, excepthowever, that the Company and the Subsidiary Guarantors may Incur Indebtedness if on the date thereof and after giving effect thereto on a pro forma basis:
(a1) the Consolidated Coverage Ratio for the Company and its Restricted Subsidiaries is at least 2.00 to 1.00; and
(2) no Default or Event of Default will have occurred or be continuing or would occur as a consequence of Incurring the Indebtedness or entering into the transactions relating to such Incurrence.
(b) The provisions of Section 4.08(a) will not prohibit the Incurrence of the following Indebtedness:
(1) Indebtedness of the Borrower under the Loan Documents;
(b) Indebtedness (i) of the Borrower to a Wholly Owned Subsidiary, (ii) of a Domestic Wholly Owned Subsidiary to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower Company or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) Guarantor in an aggregate principal amount not exceeding as to exceed $50.0 million in the aggregate together with any Additional Notes Incurred pursuant to clause (2) below, which may be Incurred under a Revolving Credit Facility and the issuance and creation of letters of credit and bankers’ acceptances thereunder (with bankers’ acceptances being deemed to have a principal amount equal to the Borrower and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the face amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12thereof);
(d2) Indebtedness of represented by the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding Notes issued on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, listed on Schedule 7.2 Issue Date and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof;
(f) Indebtedness of a Person which becomes a Subsidiary after the date hereof Additional Notes in an aggregate principal amount at not to exceed $50.0 million in the aggregate together with any time outstanding not exceeding Indebtedness Incurred under a Revolving Credit Facility pursuant to clause (i1) $15,000,000, minus above (iiincluding any Note Guarantee);
(3) Indebtedness of the sum of Company and its Restricted Subsidiaries in existence on the Issue Date (A) the amount of other than Indebtedness outstanding under described in clauses (c1), (2), (4), (5), (7), (9), (10), (11) and (i12) of this Section 7.2 4.08(b));
(4) Guarantees by (a) the Company or Subsidiary Guarantors of Indebtedness permitted to be Incurred by the Company or a Subsidiary Guarantor in accordance with the provisions of this Indenture; provided that in the event such Indebtedness that is being Guaranteed is a Subordinated Obligation or a Guarantor Subordinated Obligation, then the related Guarantee shall be subordinated in right of payment to the Notes or the Note Guarantee, as the case may be, (b) Non-Guarantor Restricted Subsidiaries of Indebtedness Incurred by Non-Guarantor Restricted Subsidiaries in accordance with the provisions of this Indenture and (Bc) the amount Company or any Restricted Subsidiary of indebtedness attributable to sale and leaseback transactions Indebtedness Incurred by an Unrestricted Subsidiary; provided, that, in the case of Guarantees under this clause (c), such Guarantee is permitted as an Investment pursuant to Section 7.12, provided that (x4.06(b) such Indebtedness existed at or the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition definition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding“Permitted Investments”;
(h5) Indebtedness under Interest Rate Protection Agreements of the Company owing to and Hedge Agreements entered into held by any Restricted Subsidiary or Indebtedness of a Restricted Subsidiary owing to and held by the ordinary course Company or any other Restricted Subsidiary; provided, however,
(a) if the Company is the obligor on Indebtedness owing to a Non-Guarantor Restricted Subsidiary, such Indebtedness is expressly subordinated to the prior payment in full in cash of business for hedging purposes all obligations with respect to the Notes;
(b) if a Subsidiary Guarantor is the obligor on such Indebtedness and not for speculative purposes;a Non-Guarantor Restricted Subsidiary is the obligee, such Indebtedness is expressly subordinated in right of payment to the Note Guarantee of such Subsidiary Guarantor; and
(i) Seller any subsequent issuance or transfer of Capital Stock or any other event which results in any such Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) being beneficially held by a Person other than the sum Company or a Restricted Subsidiary of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4Company; and
(kii) any sale or other transfer of any such Indebtedness not otherwise permitted to a Person other than the Company or a Restricted Subsidiary of the Company shall be deemed, in each case under this clause (5)(c), to constitute an Incurrence of such Indebtedness by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000Company or such Subsidiary, as the case may be;
Appears in 1 contract
Samples: Fifth Supplemental Indenture (Thompson Creek Metals CO Inc.)
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower under this Agreement and the other Loan Documents;
(b) unsecured Indebtedness (i) of any Subsidiary owing to the Borrower to a Wholly Owned Subsidiary, (ii) or any other Subsidiary or secured Indebtedness of a Domestic Wholly Owned any Subsidiary owing to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance its working capital (or the working capital of any of its Subsidiaries), in an aggregate principal amount not exceeding as to any Subsidiary $5,000,000 at any time outstanding;
(d) Indebtedness of the Borrower incurred to finance its acquisition or construction of fixed or capital assets (whether pursuant to a deferred purchase arrangement with a vendor, a loan, a Financing Lease or otherwise) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) $15,000,000 5,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notesoutstanding;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof;
(f) Indebtedness of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, hereof; provided that (xi) such Indebtedness existed at the time such corporation Person became a Subsidiary and was not created in anticipation thereof and (yii) immediately after giving effect to the acquisition of such corporation by the Borrower Person becomes a Subsidiary, no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.;
(f) Subordinated Indebtedness;
(g) Indebtedness constituting deposits to secure of the performance of bids, trade contracts (other than for borrowed moneyBorrower and its Subsidiaries existing on the date hereof and described on Schedule 7.2(g), leasesand any Indebtedness exchanged for any such scheduled Indebtedness that (i) has economic terms, statutory obligationsas of the date of issuance, surety consistent with market terms for a similarly creditworthy issuer and appeal bonds and performance bonds and (ii) has other obligations of terms, as a like nature that are incurred in the ordinary course of businesswhole, not more onerous to exceed $5,000,000 in the aggregate at any time outstandingBorrower or the relevant Subsidiary than the applicable scheduled Indebtedness;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into of the type described in clause (g) of the definition of Indebtedness incurred by the Borrower or any Subsidiary in the ordinary course of business for hedging purposes with reputable financial institutions and not for speculative purposes;
(i) Seller Indebtedness in the nature of deferred compensation to employees in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries $10,000,000 at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12outstanding;
(j) Indebtedness of any Subsidiary in an aggregate principal amount not exceeding $50,000,000 at any time outstanding; provided that the form sum of Guarantee Obligations permitted by all Indebtedness of all Subsidiaries under this Section 7.4; and7.2(j) shall not exceed $50,000,000 at any time outstanding;
(k) unsecured Indebtedness of the Borrower owing to any Subsidiary or any Affiliate of the Borrower or any Subsidiary not otherwise permitted by exceeding $80,000,000 in the foregoing clauses aggregate at any time outstanding, in each case related to the Borrower’s cash management program with its Affiliates;
(al) through Indebtedness of the Borrower incurred to finance its working capital (jincluding any working capital lines of credit) in an aggregate principal amount not exceeding $10,000,000 at any time outstanding outstanding;
(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 to exceed at any time exceeding $5,000,000;575,000,000; provided that such instruments shall not be guaranteed by any Person that is not a Loan Party.
Appears in 1 contract
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower under the any Loan DocumentsParty pursuant to any Loan Document;
(b) Indebtedness (i) of the Borrower to a Wholly Owned Subsidiary, (ii) any Subsidiary and of a Domestic any Wholly Owned Subsidiary Guarantor to the Borrower or any other Subsidiary, (iii) of Servicios Subsidiary provided such Indebtedness is subordinated to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative AgentObligations;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loanincluding, a Financing without limitation, Capital Lease or otherwiseObligations) secured by Liens permitted by Section 7.3(g) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) exceed $15,000,000 5,000,000 at any one time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12outstanding;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, hereof and listed on Schedule 7.2 7.2(d) and any refinancings, refundings, renewals or extensions thereof not increasing (without any increase in the principal amount thereof or any shortening of the maturity of any principal amount thereof);
(e) Guarantee Obligations made in the ordinary course of business by the Borrower or any of its Subsidiaries of obligations of the Borrower or any Subsidiary Guarantor;
(f) Indebtedness in respect of a Person which becomes a Subsidiary after the date hereof Senior Notes in an aggregate principal amount not to exceed $150,000,000;
(g) Indebtedness in respect of the Senior Subordinated Notes in an aggregate principal amount not to exceed $125,000,000;
(h) Non-Recourse Debt in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,00050,000,000, minus at any time when the senior, unsecured, non credit-enhanced debt of the Borrower is rated lower than either B1 or BB- by Xxxxx’x or S&P, respectively, and (ii) $75,000,000, at any time when the sum senior, unsecured, non credit-enhanced debt of (A) the amount of Indebtedness outstanding under clauses (c) Borrower is rated at least as high as B1 and BB- by Xxxxx’x and S&P, respectively;
(i) the Parent Intercompany Loan and the Holdings Intercompany Loan;
(j) additional Indebtedness of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event any of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the its Restricted Subsidiaries in an aggregate principal amount thereof.
(gfor the Borrower and all Restricted Subsidiaries) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any one time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;Parent/Borrower Intercompany Loan.
Appears in 1 contract
Limitation on Indebtedness. CreateThe Company and any Permitted Affiliate Parent will not, incurand will not permit any of the Restricted Subsidiaries to, assume or suffer to exist Incur any Indebtedness (including Acquired Indebtedness); provided, except:however, that the Company, a Permitted Affiliate Parent and any Restricted Subsidiary may Incur Indebtedness (including Acquired Indebtedness) if, on the date of such Incurrence and after giving effect thereto on a pro forma basis,
(a) (1) the Consolidated Net Leverage Ratio would not exceed 4.50 to and (2) the Consolidated Net Leverage Ratio (including, for the avoidance of doubt, Indebtedness constituting Subordinated Obligations of the Borrower under Company, a Permitted Affiliate Parent and any Restricted Subsidiary as set forth in clauses (1)(A)(iv) and (1)(A)(v) of the Loan Documents;definition of the Consolidated Net Leverage Ratio) would not exceed 5.50 to 1.00.
(b) Indebtedness (iSection 4.09(a) will not prohibit the Incurrence of the Borrower to following Indebtedness:
(1) Indebtedness of the Company, a Wholly Owned SubsidiaryPermitted Affiliate Parent and any of the Restricted Subsidiaries under Credit Facilities, (ii) of a Domestic Wholly Owned Subsidiary to and any Refinancing Indebtedness in respect thereof in the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any one time outstanding not to exceed $5,000,000 in excess exceed:
(A) an amount equal to €80.0 million; plus
(B) an amount equal to the greater of (i) €420 million, plus (b) the amount of such Indebtedness outstanding on the date any Credit Facilities incurred under Section 4.09(a)(2) or any other provision of this Agreement Section 4.09(b) to acquire any property, other assets or shares of Capital Stock of a Person, and (ivii) 5.0% of Total Assets plus
(C) any accrual or accretion of interest that increases the principal amount of Indebtedness under Credit Facilities, plus (C) in the case of any Foreign refinancing of any Indebtedness permitted under this Section 4.09(b)(1) or any portion thereof, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness of the Company or a Permitted Affiliate Parent owing to and held by any Restricted Subsidiary (other than Serviciosa Receivables Entity) or Indebtedness of a Restricted Subsidiary owing to and held by the Borrower Company, a Permitted Affiliate Parent or any Restricted Subsidiary (other than a Receivables Entity); provided, however, that:
(A) any subsequent issuance or transfer of Capital Stock or any other event which results in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced being beneficially held by a promissory note Person other than the Company, a Permitted Affiliate Parent or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;a Restricted Subsidiary (other than a Receivables Entity); and
(cB) any sale or other transfer of any such Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loanPerson other than the Company, a Financing Lease Permitted Affiliate Parent or otherwise) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries a Restricted Subsidiary (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereofother than a Receivables Entity), or incurred hereafter pursuant to existing commitments or agreements, andshall be deemed, in each case, listed on Schedule 7.2 and any refinancingsto constitute an Incurrence of such Indebtedness by the Company, refundingssuch a Permitted Affiliate Parent or such Restricted Subsidiary, renewals or extensions thereof not increasing as the principal amount thereofcase may be;
(f3) (a) Indebtedness represented by the Initial Term Loans, the Existing Senior Secured Notes and the Existing Senior Notes, (b) Indebtedness of the Guarantors represented by guarantees of the Super Senior Credit Facilities (including the Initial Term Loans), the Existing Senior Secured Notes and the Existing Senior Notes, provided that the guarantee of any such Indebtedness is subject to the terms of the Intercreditor Agreement, and (c) Indebtedness represented by the Security Documents;
(4) any Indebtedness (other than the Indebtedness described in Section 4.09(b)(1), Section 4.09(b)(2) and Section 4.09(b)(3)) outstanding on the 2017 Amendment Effective Date;
(5) any Refinancing Indebtedness Incurred in respect of any Indebtedness described in Section 4.09(b)(3), Section 4.09(b)(4), Section 4.09(b)(5), Section 4.09(b)(6), Section 4.09(b) (8), Section 4.09(b)(15), Section 4.09(b)(16), Section 4.09(b)(20) or (21) or Incurred pursuant to Section 4.09(a);
(6) Indebtedness of the Company, a Person which becomes Permitted Affiliate Parent or a Restricted Subsidiary Incurred after the 2017 Amendment Effective Date (A) Incurred and outstanding on the date hereof on which such Restricted Subsidiary was acquired by the Company, a Permitted Affiliate Parent or any 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, any Permitted Affiliate Parent or any Restricted Subsidiary or was designated a Permitted Affiliate Parent or an Affiliate Subsidiary, (B) Incurred to provide all or a portion of the funds utilized to consummate the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or a Permitted Affiliate Parent or was otherwise acquired by the Company, a Permitted Affiliate Parent or a Restricted Subsidiary, or such Person was designated as a Permitted Affiliate Parent or an Affiliate Subsidiary or (C) Incurred and outstanding on the date on which such Restricted Subsidiary was acquired by the Company, a Permitted Affiliate Parent or 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, a Permitted Affiliate Parent or any Restricted Subsidiary (other than Indebtedness Incurred in an aggregate principal amount at any time outstanding not exceeding contemplation of the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Company, a Permitted Affiliate Parent or a Restricted Subsidiary); provided, however, that with respect to Section 4.09(b)(6)(A) and Section 4.09(b)(6)(B) only, immediately following the consummation of the acquisition of such Restricted Subsidiary by the Company, a Permitted Affiliate Parent or such other transaction, (i) $15,000,000the Company, minus any Permitted Affiliate Parent and the Restricted Subsidiaries would have been able to Incur €1.00 of additional Indebtedness pursuant to Section 4.09(a) after giving pro forma effect to the relevant acquisition or other transaction and the Incurrence of such Indebtedness pursuant to this Section 4.09(b)(6) or (ii) the sum Consolidated Net Leverage Ratio would not be greater than immediately prior to such acquisition or such other transaction;
(7) Indebtedness under Currency Agreements, Commodity Agreements and Interest Rate Agreements entered into for bona fide hedging purposes of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 Company, any Permitted Affiliate Parent or the Restricted Subsidiaries and (B) Unitymedia and its Subsidiaries and, following a Permitted Affiliate Group Designation Date, the Common Holding Company and its Subsidiaries, in each case, and not for speculative purposes (as determined conclusively in good faith by the Board of Directors or senior management of the Company or a Permitted Affiliate Parent);
(8) Indebtedness consisting of (A) mortgage financings, asset backed financings, Purchase Money Obligations or other financings, Incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation or improvement (including, without limitation, in respect of tenant improvement) of property (real or personal), plant, equipment or other assets (including, without limitation, network assets) used or useful in the business of the Company, a Permitted Affiliate Parent or a Restricted Subsidiary or (B) Indebtedness otherwise Incurred to finance the purchase, lease, rental or cost of design, development, construction, installation or improvement (including, without limitation, in respect of tenant improvement) of property (real or personal), plant, equipment or other assets (including, without limitation, network assets) used or useful in the business of the Company, a Permitted Affiliate Parent or a Restricted Subsidiary, whether through the direct purchase of assets or the Capital Stock of any Person owning such assets, and any Refinancing Indebtedness which refinances, replaces or refunds such Indebtedness, in an aggregate outstanding principal amount which, when taken together with the principal amount of indebtedness attributable to sale and leaseback transactions permitted all other Indebtedness Incurred pursuant to this Section 7.124.09(b)(8), will not exceed the greater of (i) €250.0 million and (ii) 3.0% of Total Assets at any time outstanding so long as such Indebtedness exists on the date of, or commissioning of, or contracting for, such purchase, design, development, construction, installation or improvement, or is created within 270 days thereafter;
(9) Indebtedness in respect of (a) workers’ compensation claims, casualty or liability insurance, self-insurance obligations, performance (including insurance policies), bid, indemnity, surety, judgment, appeal, completion, advance payment, customs, VAT or other tax or other guarantees or other similar bonds, instruments or obligations and completion guarantees and warranties provided by the Company, a Permitted Affiliate Parent or a Restricted Subsidiary or relating to liabilities, obligations or guarantees Incurred in the ordinary course of business (or consistent with past practice or industry practice) or in respect of any government requirement, including, but not limited to, those Incurred to secure health, safety and environmental obligations or rental obligations, (b) letters of credit, bankers’ acceptances, guarantees, or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business (or consistent with past practice or industry practice) or in respect of any government requirement, , including, but not limited to, letters of credit or similar instruments in respect of casualty or liability insurance, self-insurance, unemployment insurance, workers’ compensation obligations, health disability or other benefits, pensions-related obligations and other social security laws, (c) the financing of insurance premiums or take-or-pay obligations contained in supply agreements, in each case, in the ordinary course of business and (D) any customary cash management, cash pooling or netting or setting off arrangements in the ordinary course of business;
(10) Indebtedness Incurred constituting reimbursement obligations with respect to letters of credit issued and bank guarantees in the ordinary course of business provided to lessors of real property or otherwise in connection with the leasing of real property and letters of credit in connection with the maintenance of, or pursuant to the requirements of, environmental or other permits or licenses in respect of any government requirement, or other Indebtedness with respect to reimbursement type obligations regarding the foregoing; provided, however, that upon the drawing of such letters of credit or the Incurrence of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or Incurrence;
(11) Indebtedness arising from agreements of the Company, a Permitted Affiliate Parent or a Restricted Subsidiary providing for indemnification, guarantees or obligations in respect of earn-outs or adjustment of purchase price or similar obligations, in each case, Incurred or assumed in connection with the acquisition or disposition of any business, assets or Capital Stock of the Company, a Permitted Affiliate Parent or a Restricted Subsidiary, provided that (x) the maximum aggregate liability in respect of all such Indebtedness existed shall at no time exceed the time gross proceeds (including the fair market value of non-cash proceeds) actually received (in the case of dispositions) or paid (in the case of acquisitions) by the Company, any Permitted Affiliate Parent and the Restricted Subsidiaries in connection with such corporation became a Subsidiary and was not created in anticipation thereof disposition or acquisition, as applicable;
(12) Indebtedness arising from (i) Bank Products and (yii) immediately after giving effect to the acquisition of such corporation honoring by the Borrower no Default a bank or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations financial institution of a like nature that are incurred check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, not to exceed $5,000,000 provided, however, that in the aggregate at any time outstandingcase of this clause (ii), such Indebtedness is extinguished within thirty Business Days of Incurrence;
(h13) guarantees by the Company, a Permitted Affiliate Parent or any Restricted Subsidiary of Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into or any other obligation or liability of the ordinary course Company, a Permitted Affiliate Parent or any Restricted Subsidiary (other than of business for hedging purposes and not for speculative purposesany Indebtedness Incurred by the Company, a Permitted Affiliate Parent or Restricted Subsidiary in violation of this Section 4.09); provided, however, that if the Indebtedness being guaranteed is subordinated in right of payment to the Facilities, then such guarantee shall be subordinated substantially to the same extent as the relevant Indebtedness guaranteed;
(i14) Seller Subordinated Shareholder Loans Incurred by the Company;
(15) Indebtedness in an aggregate principal amount at of the Company, any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of Permitted Affiliate Parent or any Subsidiary Guarantor Incurred pursuant to (A) the amount guarantees of Indebtedness outstanding under clauses (c) and (f) the Existing Senior Notes issued on or before the date of this Section 7.2Agreement, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount any guarantees of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) other Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at Unitymedia or any time outstanding other Parent provided that for purposes of not to exceed $5,000,000;this clause
Appears in 1 contract
Limitation on Indebtedness. Create, incur, assume or suffer to exist any IndebtednessIndebtedness (including any Indebtedness of any of its Subsidiaries), except:
(a) Indebtedness of each of the Borrower under Borrowers incurred pursuant to this Agreement and the other Loan Documents;
(bi) Indebtedness evidenced by the Dollar Senior Notes and Senior Subordinated Notes; provided that (x) the aggregate principal amount of Indebtedness evidenced by Dollar Senior Notes and Senior Subordinated Notes at any time outstanding pursuant to this clause (b)(i) shall not exceed $2,400,000,000 (except as a result of any capitalization of accrued and unpaid interest thereon, including through the issuance of pay-in-kind notes) less any repayments of principal of Indebtedness theretofore outstanding pursuant to this clause (b)(i) and (y) the aggregate amount of senior (as opposed to senior subordinated) Indebtedness outstanding at any time pursuant to this clause (b)(i) shall not exceed $1,800,000,000 (except as a result of any capitalization of accrued and unpaid interest thereon, including through the issuance of pay-in-kind notes) less the amount of any reductions pursuant to clause (x) of this proviso as a result of repayments of theretofore outstanding senior Indebtedness as described in preceding clause (x) of this proviso, and (ii) Indebtedness evidenced by the Euro Senior Notes; provided that the aggregate principal amount of Indebtedness evidenced by Euro Senior Notes and Senior Subordinated Notes at any time outstanding pursuant to this clause (b)(i) shall not exceed €225,000,000 (except as a result of any capitalization of accrued and unpaid interest thereon, including through the issuance of pay-in-kind notes) less any repayments of principal of Indebtedness theretofore outstanding pursuant to this clause (b)(ii); in each case provided that the foregoing New Notes shall not be extended, renewed, replaced, refinanced or otherwise amended, except as permitted by subsection 8.14;
(c) Assumed Indebtedness;
(d) Indebtedness incurred pursuant to the Senior Term Loans Documents; provided that the aggregate principal amount of Indebtedness at any time outstanding pursuant to this clause (d) shall not exceed $2,250,000,000 (except as a result of any capitalization of accrued and unpaid interest thereon, including through the issuance of pay-in-kind notes), provided that such Indebtedness shall not be extended, renewed, replaced, refinanced or otherwise amended, except as permitted by subsection 8.14;
(e) Indebtedness (i) (A) of any Special Purpose Subsidiary secured by a Lien on all or part of the assets disposed of in, or otherwise incurred in connection with, a Financing Disposition or (B) otherwise incurred in connection with a Special Purpose Financing; provided that (1) such Indebtedness is not recourse to the Parent Borrower or any Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), (2) in the event such Indebtedness shall become recourse to the Parent Borrower or any Subsidiary that is not a Wholly Owned Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), such Indebtedness is permitted by one or more of the other provisions of this subsection 8.2 (including clause (ii) below of this subsection 8.2(e), in which case, if such Indebtedness is to be permitted by subclause (C) thereof, such Indebtedness shall be deemed to have been incurred on the date on which such Indebtedness shall have become recourse to the Parent Borrower or such Subsidiary) for so long as such Indebtedness shall be so recourse and (3) in the event that at any time thereafter such Indebtedness shall comply with the provisions of the preceding subclause (1), such Indebtedness shall be permitted under this clause (i); (ii) of a the Parent Borrower or any of its Domestic Wholly Owned Subsidiaries directly or indirectly incurred to finance or refinance the acquisition of, or secured by, Vehicles and/or other Equipment and/or related rights and/or assets, so long as (A) such Indebtedness is directly or indirectly incurred to finance or refinance the acquisition of, or secured by, Hawaiian Vehicles (“Hawaiian Vehicle Indebtedness”), (B) the aggregate principal amount of such Indebtedness (other than Hawaiian Vehicle Indebtedness) does not, at any time exceed $750,000,000 outstanding or (C) on the date of the incurrence of such Indebtedness, after giving effect to the incurrence thereof, the amount of all secured Indebtedness of the Parent Borrower and its Subsidiaries (other than (i) Indebtedness incurred by Special Purpose Subsidiaries and (ii) Hawaiian Vehicle Indebtedness) then outstanding does not exceed an amount equal to the product of (x) 2.75 and (y) EBITDA for the Reference Period most recently ended for which consolidated financial statements of the Parent Borrower and its Subsidiaries have been required to be delivered pursuant to subsection 7.1(a) or 7.1(b);
(f) Indebtedness of the Parent Borrower or any Subsidiary to the Parent Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(cg) Indebtedness of the Parent Borrower or and any Subsidiary of its Subsidiaries (other than Special Purpose Subsidiaries) incurred to finance or refinance the acquisition acquisition, leasing, construction or construction improvement of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) otherwise permitted pursuant to this Agreement, and any other Financing Leases, in an aggregate principal amount not exceeding in the aggregate as to the Parent Borrower and its Subsidiaries (i) $15,000,000 150,000,000 at any one time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof;
(f) Indebtedness of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12outstanding, provided that (x) such Indebtedness existed at amount shall be increased by an amount equal to $25,000,000 on each anniversary of the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower Closing Date, so long as no Default or Event of Default shall have occurred and be continuing, and continuing on any refinancings, refundings, renewals or extensions thereof not increasing the principal date on which such amount thereof.
(g) Indebtedness constituting deposits is to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstandingbe increased;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;
Appears in 1 contract
Samples: Credit Agreement (Hertz Corp)
Limitation on Indebtedness. CreateNo Credit Party shall, and no Credit Party shall suffer or permit any of its Restricted Subsidiaries to, create, incur, assume assume, permit to exist, or suffer to exist otherwise become or remain directly or indirectly liable with respect to, any Indebtedness, except:
(a) Indebtedness of the Borrower under the Loan DocumentsObligations;
(b) Indebtedness (i) consisting of the Borrower Contingent Obligations permitted pursuant to a Wholly Owned Subsidiary, (ii) of a Domestic Wholly Owned Subsidiary to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative AgentSection 5.8;
(c) Indebtedness of existing on the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) Closing Date and set forth in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12Schedule 5.5 including Permitted Refinancings thereof;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof;
(f) Indebtedness of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 75,000,000 in the aggregate at any time outstanding, consisting of Capital Lease Obligations or secured by Liens permitted by Section 5.1(h) and Permitted Refinancings thereof;
(e) unsecured intercompany Indebtedness permitted pursuant to Section 5.4(b);
(f) unsecured Subordinated Indebtedness;
(g) Indebtedness of the Borrower to Rexam evidenced by or arising under the Rexam Financing Documents; provided that the aggregate principal amount of such Indebtedness shall not exceed $25,000,000, less the aggregate amount of all repayments, repurchases, redemptions, rebates or credits, whether option or mandatory, in respect thereof, plus interest thereon (whether or not capitalized) at the rate provided in the Rexam Financing Documents and any Permitted Refinancing thereof;
(h) Indebtedness of Holdings and Wise Alloys Finance Corporation to the Senior Noteholders evidenced by or arising under Interest Rate Protection Agreements the Senior Notes Documents and Hedge Agreements entered into any Permitted Refinancing thereof; provided that the ordinary course aggregate principal amount of business for hedging purposes and such Indebtedness shall not for speculative purposes;at any time exceed $650,000,000; and
(i) Seller other unsecured Indebtedness owing to Persons that are not Affiliates of the Credit Parties not exceeding $100,000,000 in an the aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;outstanding.
Appears in 1 contract
Samples: Credit Agreement (Constellium N.V.)
Limitation on Indebtedness. Create, incur, assume or suffer to exist (in each case, to "Incur") any Indebtedness, except:
(a) Indebtedness of the Borrower under the any Loan DocumentsParty pursuant to any Loan Document;
(b) Indebtedness (i) of the Borrower to a Wholly Owned Subsidiary, (ii) any Subsidiary and of a Domestic any Wholly Owned Subsidiary Guarantor to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwisesecured by Liens permitted by Section 7.3(g) in an aggregate principal amount not exceeding as to exceed, when added to the Borrower and its Subsidiaries Capital Lease Obligations permitted under paragraph (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (id) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.127.2, $30,000,000 at any one time outstanding;
(d) Capital Lease Obligations in an aggregate principal amount not to exceed, when added to the Indebtedness permitted under paragraph (c) of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notesthis Section 7.2, $30,000,000 at any one time outstanding;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, hereof and listed on Schedule 7.2 7.2(e) and any refinancings, refundings, renewals or extensions thereof not increasing (without any increase in the principal amount thereof);
(f) Indebtedness guarantees made in the ordinary course of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation business by the Borrower no Default or Event any of Default shall have occurred and be continuing, and its Subsidiaries of obligations of any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.Wholly Owned Subsidiary Guarantor;
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at under any time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into to protect the ordinary course Borrower or any of business for hedging purposes its Subsidiaries against fluctuations in interest rates and not for speculative purposes;
(h) other Indebtedness (contingent or direct) not to exceed $6,000,000 outstanding at any one time in respect of letters of credit issued for the account of the Borrower or any of its Subsidiaries in the conduct of their business in the ordinary course and any Guarantee Obligations thereof;
(i) Seller Indebtedness of the Borrower under the remaining Senior Notes outstanding upon the consummation of the Debt Tender Offer in an aggregate principal amount not to exceed $_________ at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12outstanding;
(j) Indebtedness renewals and extensions (in the form same or lesser principal amount on similar terms and conditions and in any case no less favorable to the interests of Guarantee Obligations permitted by Section 7.4; andthe Lenders) of any Indebtedness listed in the foregoing clauses;
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of Hollx Xxxance Company not to exceed $5,000,000;13,500,000 in aggregate principal amount outstanding at any time, provided that the aggregate principal amount of such Indebtedness outstanding at any time, when added to the aggregate principal amount of Indebtedness incurred pursuant to subsection 7.2(l) below and outstanding at such time, does not exceed $20,000,000; and
(l) other unsecured Indebtedness not to exceed $10,000,000 in aggregate principal amount outstanding at any time, provided that the aggregate principal amount of such Indebtedness outstanding at any time, when added to the aggregate principal amount of Indebtedness incurred pursuant to subsection 7.2(k) above and outstanding at such time, does not exceed $20,000,000.
Appears in 1 contract
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower under this Agreement and the other Loan Documents;
(b) unsecured Indebtedness (i) of any Subsidiary owing to the Borrower to a Wholly Owned Subsidiary, (ii) or any other Subsidiary or secured Indebtedness of a Domestic Wholly Owned any Subsidiary owing to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance its working capital (or the working capital of any of its Subsidiaries), in an aggregate principal amount not exceeding as to any Subsidiary $2,500,000 at any time outstanding;
(d) Indebtedness of the Borrower incurred to finance its acquisition or construction of fixed or capital assets (whether pursuant to a deferred purchase arrangement with a vendor, a loan, a Financing Lease or otherwise) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) $15,000,000 2,500,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notesoutstanding;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof;
(f) Indebtedness of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding hereof; PROVIDED that (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation Person became a Subsidiary and was not created in anticipation thereof and (yii) immediately after giving effect to the acquisition of such corporation by the Borrower Person becomes a Subsidiary, no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.;
(f) Subordinated Indebtedness;
(g) Indebtedness constituting deposits to secure of the performance of bidsBorrower and its Subsidiaries existing on the date hereof, trade contracts (other than for borrowed moneyas described on SCHEDULE 7.2(g), leasesand any Indebtedness exchanged for the Zero-Coupon Bonds and the Feline Prides Senior Notes, statutory obligationswhich Indebtedness is on economic terms, surety as a whole, at least as favorable to the Borrower as the Zero-Coupon Bonds and appeal bonds the Feline Prides Senior Notes, respectively, and performance bonds and on other obligations of terms, as a like nature that are incurred in the ordinary course of businesswhole, not more onerous to exceed $5,000,000 in the aggregate at any time outstandingBorrower than the Zero-Coupon Bonds and the Feline Prides Senior Notes, respectively (IT BEING UNDERSTOOD AND AGREED that SECTION 7.8 shall not limit the ability of the Borrower to consummate such exchange);
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into of the type described in CLAUSE (g) of the definition of Indebtedness incurred by the Borrower or any Subsidiary in the ordinary course of business for hedging purposes with reputable financial institutions and not for speculative purposes;
(i) Seller Indebtedness in the nature of deferred compensation to employees in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries $10,000,000 at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12outstanding;
(j) Indebtedness of any Subsidiary in an aggregate principal amount not exceeding $25,000,000 at any time outstanding; provided that the form sum of Guarantee Obligations permitted by Section 7.4; andall Indebtedness of all Subsidiaries under this SECTION 7.2(j) shall not exceed $25,000,000 at any time outstanding;
(k) unsecured Indebtedness of the Borrower owing to any Subsidiary or any Affiliate of the Borrower or any Subsidiary not otherwise permitted by exceeding $80,000,000 in the foregoing clauses aggregate at any time outstanding, in each case related to the Borrower's cash management program with its Affiliates;
(al) through Indebtedness of the Borrower incurred to finance its working capital (jincluding any working capital lines of credit) in an aggregate principal amount not exceeding $10,000,000 at any time outstanding outstanding;
(m) Guarantee Obligations in respect of Indebtedness otherwise permitted under this SECTION 7.2; and
(n) senior unsecured notes of the Borrower in an aggregate principal amount not to exceed $5,000,000;200,000,000; PROVIDED that such notes shall not be guaranteed by any Person that is not a Loan Party (subject to CLAUSE (m) above).
Appears in 1 contract
Limitation on Indebtedness. Create, incur, assume or suffer to exist any IndebtednessIndebtedness (including any Indebtedness of any of its Subsidiaries), except:
(a) Indebtedness of the Parent Borrower under incurred pursuant to this Agreement and the other Loan Documents;
(b) Indebtedness evidenced by the Dollar Senior Notes and Senior Subordinated Notes; provided that (x) the aggregate principal amount of Indebtedness evidenced by Dollar Senior Notes and Senior Subordinated Notes at any time outstanding pursuant to this clause (b)(i) shall not exceed $2,400,000,000 (except as a result of any capitalization of accrued and unpaid interest thereon, including through the issuance of pay-in-kind notes) less any repayments of principal of Indebtedness theretofore outstanding pursuant to this clause (b)(i) and (y) the aggregate amount of senior (as opposed to senior subordinated) Indebtedness outstanding at any time pursuant to this clause (b)(i) shall not exceed $1,800,000,000 (except as a result of any capitalization of accrued and unpaid interest thereon, including through the issuance of pay-in-kind notes) less the amount of any reductions pursuant to clause (x) of this proviso as a result of repayments of theretofore outstanding senior Indebtedness as described in preceding clause (x) of this proviso, and (ii) Indebtedness evidenced by the Euro Senior Notes; provided that the aggregate principal amount of Indebtedness evidenced by Dollar Senior Notes and Senior Subordinated Notes at any time outstanding pursuant to this clause (b)(i) shall not exceed €225,000,000 (except as a result of any capitalization of accrued and unpaid interest thereon, including through the issuance of pay-in-kind notes) less any repayments of principal of Indebtedness theretofore outstanding pursuant to this clause (b)(ii); in each case provided that the foregoing New Notes shall not be extended, renewed, replaced, refinanced or otherwise amended, except as permitted by subsection 8.14;
(c) Assumed Indebtedness;
(d) Indebtedness incurred pursuant to the ABL Facility Documents, including any extension, refinancing, refunding, replacement or renewal thereof; provided that the aggregate principal amount of Indebtedness at any time outstanding pursuant to this clause (d) shall not exceed $1,800,000,000 (except as a result of any capitalization of accrued and unpaid interest thereon, including through the issuance of pay-in-kind notes);
(e) Indebtedness (i) (A) of any Special Purpose Subsidiary secured by a Lien on all or part of the assets disposed of in, or otherwise incurred in connection with, a Financing Disposition or (B) otherwise incurred in connection with a Special Purpose Financing; provided that (1) such Indebtedness is not recourse to the Parent Borrower or any Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), (2) in the event such Indebtedness shall become recourse to the Parent Borrower or any Subsidiary that is not a Wholly Owned Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), such Indebtedness is permitted by one or more of the other provisions of this subsection 8.2 (including clause (ii) below of this subsection 8.2(e), in which case, if such Indebtedness is to be permitted by subclause (c) thereof, such Indebtedness shall be deemed to have been incurred on the date on which such Indebtedness shall have become recourse to the Parent Borrower or such Subsidiary) for so long as such Indebtedness shall be so recourse and (3) in the event that at any time thereafter such Indebtedness shall comply with the provisions of the preceding subclause (1), such Indebtedness shall be permitted under this clause (i); (ii) of a the Parent Borrower or any of its Domestic Wholly Owned Subsidiaries directly or indirectly incurred to finance or refinance the acquisition of, or secured by, Vehicles and/or other Equipment and/or related rights and/or assets, so long as (A) such Indebtedness is directly or indirectly incurred to finance or refinance the acquisition of, or secured by, Hawaiian Vehicles (“Hawaiian Vehicle Indebtedness”), (B) the aggregate principal amount of such Indebtedness (other than Hawaiian Vehicle Indebtedness) does not, at any time exceed $750,000,000 outstanding or (C) on the date of the incurrence of such Indebtedness, after giving effect to the incurrence thereof, the amount of all secured Indebtedness of the Parent Borrower and its Subsidiaries (other than (i) Indebtedness incurred by Special Purpose Subsidiaries and (ii) Hawaiian Vehicle Indebtedness) then outstanding does not exceed an amount equal to the product of (x) 2.75 and (y) EBITDA for the Reference Period most recently ended for which consolidated financial statements of the Parent Borrower and its Subsidiaries have been required to be delivered pursuant to subsection 7.1(a) or 7.1(b);
(f) Indebtedness of the Parent Borrower or any Subsidiary to the Parent Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(cg) Indebtedness of the Parent Borrower or and any Subsidiary of its Subsidiaries (other than Special Purpose Subsidiaries) incurred to finance or refinance the acquisition acquisition, leasing, construction or construction improvement of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) otherwise permitted pursuant to this Agreement, and any other Financing Leases, in an aggregate principal amount not exceeding in the aggregate as to the Parent Borrower and its Subsidiaries (i) $15,000,000 150,000,000 at any one time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof;
(f) Indebtedness of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12outstanding, provided that (x) such Indebtedness existed at amount shall be increased by an amount equal to $25,000,000 on each anniversary of the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower Closing Date, so long as no Default or Event of Default shall have occurred and be continuing, and continuing on any refinancings, refundings, renewals or extensions thereof not increasing the principal date on which such amount thereof.
(g) Indebtedness constituting deposits is to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstandingbe increased;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;
Appears in 1 contract
Samples: Credit Agreement (Hertz Corp)
Limitation on Indebtedness. Create, incur, assume or suffer permit to exist any Indebtedness, except:
(a) Indebtedness of the any Borrower under the or any Subsidiary Guarantor pursuant to any Loan DocumentsDocument;
(b) to the extent permitted by Section 6.07(c), Indebtedness (i) of the Borrower Company to a Wholly Owned any Subsidiary, (ii) and of a Domestic Wholly Owned any Subsidiary to the Borrower Company or any other Subsidiary, (iii) ; provided that all such Indebtedness of Servicios to the any Borrower or any Subsidiary in an aggregate principal amount at any time outstanding Guarantor owed to a Person that is not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the a Borrower or any a Subsidiary in an aggregate principal amount at any time outstanding (with respect Guarantor shall be subject to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative AgentSubordinated Intercompany Note;
(c) Indebtedness (including, without limitation, Attributable Debt arising from Permitted Sale-Leaseback Transactions and Capital Lease Obligations) secured by Liens permitted by Sections 6.02(g) and (q); provided, that the aggregate amount of all such Indebtedness, together with the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) in an aggregate principal amount not exceeding as of all Indebtedness incurred pursuant to the Borrower and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (fSections 6.01(g), 6.01(h) and (i) of this Section 7.2 and 6.02(o), shall not exceed the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12Restricted Debt Basket Amount;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, hereof and listed on Schedule 7.2 6.01(d) and any refinancings, refundings, renewals or extensions thereof not increasing (without any increase in the principal amount thereof or any shortening of the Weighted Average Life to Maturity thereof);
(e) to the extent permitted by Section 6.07(c), Guarantee Obligations made in the ordinary course of business by the Company or any of its Subsidiaries of obligations of the Company or any Subsidiary of the Company;
(f) unsecured senior and/or senior subordinated Indebtedness of the Company (other than Permitted Seller Debt) and the unsecured senior and/or senior subordinated guarantee by any Subsidiary Guarantor hereunder of the Company’s obligations thereunder; provided that (i) such Indebtedness shall have no scheduled amortization and no part of the principal part of such Indebtedness shall have a maturity date earlier than 181 days after the Maturity Date, (ii) after giving effect to the incurrence of any such Indebtedness, on a Pro Forma Basis, as if such incurrence of Indebtedness, the application of the proceeds thereof and the consummation of any other Specified Transaction occurring since the first day of the Calculation Period then last ended had occurred on the first day of the Calculation Period then last ended, the Company and its Subsidiaries are in compliance with the financial covenants set forth in Section 6.18 for the Calculation Period then last ended, and the Company shall have delivered to the Administrative Agent a certificate of a Responsible Officer of the Company to such effect setting forth in reasonable detail the computations necessary to demonstrate such compliance with the covenants contained in Section 6.18, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist and be continuing, (iv) such Indebtedness contains covenants, events of default, redemption provisions, remedies, subordination provisions (if applicable) and other terms and conditions customary at the time for high yield unsecured senior or senior subordinated securities issued in a public offering or a private placement under Rule 144A of the Securities Act of 1933 and otherwise reasonably acceptable to the Administrative Agent (provided that, in any event, the documentation governing such Indebtedness shall not include a financial maintenance covenant and may only include a “cross acceleration” default to other indebtedness rather than a “cross default”) and (v) the documentation governing such Indebtedness contains terms that are no more restrictive than the terms applicable to the Indebtedness hereunder;
(g) Indebtedness of Foreign Subsidiaries of the Company in an aggregate amount, together with the aggregate amount of Indebtedness incurred pursuant to Sections 6.01(c), 6.01(h) and 6.02(o), not to exceed the Restricted Debt Basket Amount;
(h) Indebtedness of a Person which becomes a Subsidiary after of the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted Company acquired pursuant to Section 7.12a Permitted Acquisition (or Indebtedness assumed at the time of a Permitted Acquisition of an asset securing such Indebtedness) (the “Permitted Acquired Debt”), provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created incurred in connection with, or in anticipation thereof and or contemplation of, such Permitted Acquisition, (y) immediately after giving effect to the acquisition such Indebtedness does not constitute debt for borrowed money (it being understood and agreed that Capital Lease Obligations and purchase money Indebtedness shall not constitute debt for borrowed money for purposes of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuingthis clause (y)), and any refinancings, refundings, renewals or extensions thereof not increasing (z) the aggregate principal amount thereof.of all Permitted Acquired Debt assumed pursuant to this clause (g), together with the aggregate amount of Indebtedness incurred pursuant to Sections 6.01(c), 6.01(g) and 6.02(o), shall not exceed the Restricted Debt Basket Amount;
(gi) Indebtedness constituting deposits to secure arising from the performance of bids, trade contracts (honoring by a bank or other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations financial institution of a like nature that are incurred check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;
(h) so long as such Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course is extinguished within five Business Days of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12its incurrence;
(j) Indebtedness of the Company or any of its Subsidiaries which may be deemed to exist in connection with agreements providing for indemnification, purchase price adjustments and similar obligations in connection with the form acquisition or disposition of Guarantee Obligations assets in accordance with the requirements of this Agreement, so long as any such obligations are those of the Person making the respective acquisition or sale, and are not guaranteed by any other Person except as permitted by Section 7.4; and6.01(e);
(k) Indebtedness to insurance companies incurred in order to permit the Company or one of its Subsidiaries to repay obligations owing by such Person to former employees of such Person under either of the Company’s 401K Plus deferred compensation plans, so long as such Indebtedness is not otherwise permitted greater than the aggregate cash surrender value of insurance policies owned by the foregoing clauses Company and covering the lives of participants in the Company’s 401K Plus deferred compensation plans;
(al) through Permitted Seller Debt;
(jm) (i) Indebtedness of the Company or any Subsidiary incurred pursuant to Permitted Receivables Facilities; provided that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount of $50,000,000 at any time outstanding and (ii) Indebtedness of the Company or any Subsidiary incurred pursuant to Permitted Factoring Transactions permitted pursuant to Section 6.04(i); and
(n) additional Indebtedness of the Company or any Subsidiary Guarantor in an aggregate principal amount at any time outstanding of (for the Company and all Subsidiary Guarantors) not to exceed $5,000,000;at any one time outstanding an amount equal to the remainder of (x) 10% of Consolidated Net Worth at such time less (y) the sum of (I) the aggregate amount of all Indebtedness incurred pursuant to Section 6.01(c) and outstanding at such time plus (II) the aggregate principal amount of all Permitted Acquired Debt incurred pursuant to Section 6.01(h) and outstanding at such time.
Appears in 1 contract
Samples: Credit Agreement (LKQ Corp)
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:;
(a) Indebtedness of the Borrower under the Loan Documentsthis Agreement or under any Hedging Agreement;
(b) Indebtedness of the Parent, the Borrower or any Subsidiary (including Financing Leases) incurred to finance the purchase price of equipment, fixtures and other similar property of the Parent, the Borrower or such Subsidiary in an amount not to exceed the Dollar Equivalent of $2,000,000 at any one time outstanding;
(c) Unsecured Indebtedness of (i) of the Borrower to a Wholly Owned Subsidiary, (ii) of a Domestic Wholly Owned any Subsidiary owed to the Borrower or any other Subsidiary or (ii) the Borrower owed to any Subsidiary; provided that the sum of loans, advances and other investments under Section 6.9(g) (iii) of Servicios to the Borrower or any Subsidiary in an extent not duplicative) and the aggregate principal amount of all such unsecured Indebtedness shall not exceed the Dollar Equivalent of (A) in respect of any Subsidiary that is not an Approved Subsidiary, the lesser of (x) $5,000,000 and (y) the sum of such investments in and loans, advances and unsecured Indebtedness to such Subsidiary as in effect on January 26, 2002, in each case, at any one time outstanding outstanding, and (B) in respect of all Subsidiaries that are not to exceed Approved Subsidiaries, the lesser of (x) $5,000,000 10,000,000 in excess of the amount aggregate and (y) the sum of such investments in and loans, advances and unsecured Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000as in effect on January 26, provided that such Indebtedness referred to 2002, in clauses (iii) and (iv) hereofeach case, if to the Borrower or at any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agentone time outstanding;
(cd) Existing Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) in an aggregate principal amount not exceeding as to exceed the Borrower and its Subsidiaries (i) $15,000,000 at any time principal amount outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Noteson January 26, 2002;
(e) Indebtedness outstanding on the date hereof, Permitted High Yield Securities or incurred hereafter pursuant to existing commitments or agreements, and, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereofRefinancing Securities;
(f) Indebtedness of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.Subordinated Guarantees;
(g) unsecured Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of in a like nature that are incurred in the ordinary course of business, principal amount not to exceed $5,000,000 in the aggregate at any time outstanding;100,000; and
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into of Fluent UK Holdings, Ltd. owed to the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness Borrower in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed the Dollar Equivalent of $5,000,000;8,000,000; provided that, subject to Section 956 of the Code, any security for such Indebtedness shall be assigned to the Administrative Agent, for the benefit of the Lenders.
Appears in 1 contract
Samples: Forbearance and Amendment Agreement (Aavid Thermal Technologies Inc)
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower under the any Loan DocumentsParty pursuant to any Loan Document;
(b) Indebtedness (i) of the Borrower to a Wholly Owned Subsidiary, (ii) any Subsidiary Guarantor and of a Domestic any Wholly Owned Subsidiary Guarantor to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loanincluding, a Financing without limitation, Capital Lease or otherwiseObligations) secured by Liens permitted by Section 6.3(g) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) exceed $15,000,000 3,000,000 at any one time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12outstanding;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, hereof and listed on Schedule 7.2 6.2(d) and any refinancings, refundings, renewals or extensions thereof not increasing (without any increase in the principal amount thereof or any shortening of the maturity of any principal amount thereof);
(e) Guarantee Obligations made in the ordinary course of business by the Borrower or any of its Subsidiaries of obligations of the Borrower or any Subsidiary Guarantor; and
(f) unsecured Indebtedness owing to sellers of Qualified Tower Portfolios and constituting a Person which becomes portion of the consideration for the acquisition of such Qualified Tower Portfolios by the Borrower or a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000Guarantor, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that so long as (x) such Indebtedness existed at (excluding any deferred purchase consideration which is contingent and existing on the time such corporation became a Subsidiary and was not created in anticipation thereof and Closing Date) is subordinated to the Obligations on substantially the terms of Schedule 6.2(f), (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount of all Indebtedness under this Section 6.2(f) at any one time outstanding shall not exceeding (i) exceed $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (cincluding any deferred purchase consideration which is contingent) and (fz) the aggregate amount of all deferred purchase consideration which is contingent under this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B6.2(f) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any one time outstanding of shall not to exceed $5,000,000;10,000,000.
Appears in 1 contract
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness The Issuer will not, and will not permit any of the Borrower under Restricted Subsidiaries to, Incur any Indebtedness (including Acquired Indebtedness); provided that the Loan Documents;Issuer and any of the Restricted Subsidiaries may Incur Indebtedness (including Acquired Indebtedness), if on the Applicable Test Date and after giving pro forma effect thereto (including pro forma application of the proceeds thereof), either: (i) the Fixed Charge Coverage Ratio is at least 2.00:1.00 or (ii) the Total Net Leverage Ratio does not exceed 8.00:1.00.
(b) Section 4.08(a) will not prohibit the Incurrence of the following Indebtedness (icollectively, “Permitted Debt”):
(1) the Incurrence by the Issuer or any of the Borrower to a Wholly Owned SubsidiaryRestricted Subsidiaries of Indebtedness under any Credit Facility (and the issuance and creation of letters of credit, (iiguarantees and bankers’ acceptances thereunder) of a Domestic Wholly Owned Subsidiary to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;sum of:
(cA) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries of:
(i) $15,000,000 the greater of (x) €375.0 million or, if higher, the principal amount of Facility B (EUR) as at any time outstanding minus the Acquisition Closing Date and (y) an amount equal to 175% of LTM EBITDA; plus
(ii) the amount greater of Indebtedness outstanding under clauses (fx) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof$850.0 million or, or incurred hereafter pursuant to existing commitments or agreementsif higher, and, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof;of Facility B (USD) as at the Acquisition Closing Date and (y) an amount equal to 325% of LTM EBITDA; plus
(fiii) Indebtedness the greater of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (iix) the sum of (A) the greater of (I) €200.00 million and (II) the Borrowing Base as of the date of Incurrence, or if higher, the principal amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 the ABL Facility at the Acquisition Closing Date and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof €75.0 million and (y) immediately an amount equal to 93% of LTM EBITDA; plus
(B) the greater of (x) €215.00 million and (y) an amount equal to 100% of LTM EBITDA; plus
(C) the maximum amount of Senior Secured Indebtedness such that, on the Applicable Test Date after giving pro forma effect to such Incurrence, the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof Senior Secured Net Leverage Ratio does not increasing the principal amount thereof.exceed 4.90:1.00; plus
(gD) the maximum amount of Indebtedness constituting deposits that constitutes Total Secured Debt that is not Senior Secured Indebtedness such that, on the Applicable Test Date after giving pro forma effect to secure the performance of bidssuch Incurrence, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;either:
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding the Total Secured Net Leverage Ratio does not exceeding (i) $15,000,000 minus exceed 5.50:1.00; or
(ii) the sum Fixed Charge Coverage Ratio is at least 2.00:1.00; plus
(E) the maximum amount of Indebtedness that is not Senior Secured Indebtedness or Total Secured Debt, or is unsecured such that on the Applicable Test Date, after giving pro forma effect to such Incurrence, either:
(i) the Total Net Leverage Ratio does not exceed 8.00:1.00; or
(ii) the Fixed Charge Coverage Ratio is at least 2.00:1.00, provided that any Indebtedness or unutilized commitments in respect of Indebtedness Incurred or deemed to be Incurred pursuant to this Section 4.08(b)(1) may be refinanced at any time if such refinancing does not exceed the greater of (x) the aggregate principal amount of Indebtedness permitted to be Incurred pursuant to this Section 4.08(b)(1) on the Applicable Test Date for such refinancing and (y) the aggregate principal amount of the Indebtedness or unutilized commitments in respect of Indebtedness being refinanced at such time (together with an amount necessary to pay accrued and unpaid interest and any fees and expenses (including original issue discount, upfront fees or similar fees), including any premium and defeasance costs, indemnity fees, discounts, premiums and other costs and expenses Incurred or payable in connection with such refinancing) and, in the case of a refinancing of Indebtedness under Facility B (EUR), Facility B (USD) and the ABL Facility, such Indebtedness shall be treated for all purposes as Incurred pursuant to Section 4.08(b)(1)(A)(i), Section 4.08(b)(1)(A)(ii) and Section 4.08(b)(1)(A)(iii), respectively;
(2) any (A) Guarantees by the amount Issuer or any Restricted Subsidiary of Indebtedness outstanding under clauses (c) and (f) or other obligations of this Section 7.2, and the Issuer or any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof Restricted Subsidiary and (B) without limiting Section 4.11, Indebtedness arising by reason of any Lien granted by or applicable to such person securing Indebtedness of the amount Issuer or any Restricted Subsidiary, in each case, so long as the Incurrence of indebtedness attributable to sale and leaseback transactions such Indebtedness or other obligations is permitted pursuant to Section 7.12by the terms of this Indenture;
(j3) Indebtedness in of the form Issuer owing to and held by any Restricted Subsidiary or Indebtedness of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted a Restricted Subsidiary owing to and held by the foregoing clauses (a) through (j) in an aggregate principal amount at Issuer or any time outstanding of not to exceed $5,000,000Restricted Subsidiary;
Appears in 1 contract
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower or any Subsidiary under the this Agreement or any other Loan DocumentsDocument;
(b) existing Indebtedness of the Borrower and its Subsidiaries listed on Schedule 8.2 and any Refinancing Indebtedness in respect thereof;
(ic) Indebtedness of the Borrower to a Wholly Owned Subsidiary, (ii) any Subsidiary of a the Borrower and of any Domestic Wholly Owned Subsidiary to the Borrower or to any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, indebtedness is evidenced by a promissory note or promissory notes which has or have been that is pledged to the Administrative Agent in accordance with the Guarantee and Collateral Agent on terms and conditions reasonably satisfactory to the Administrative AgentAgreement;
(cd) Indebtedness under sale and leaseback transactions permitted by subsection 8.12;
(e) Indebtedness of the Borrower under Hedge Agreements entered into solely to hedge interest rate exposure and not for speculative purposes;
(f) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition acquisition, construction or construction improvement of any fixed or capital assets, including obligations under Financing Leases and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof which Lien was not created in contemplation of such acquisition and on any extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that (whether pursuant A) such Indebtedness is incurred prior to a loan, a Financing Lease or otherwisewithin 120 days (150 days in the case of the Xxxxx Township Facility) in an after such acquisition or the completion of such construction or improvement and (B) the aggregate principal amount of Indebtedness permitted by this paragraph (f), and the aggregate amount of sale-leaseback transactions permitted under subsection 8.12 theretofore consummated, shall not exceeding as to the Borrower and its Subsidiaries (i) exceed $15,000,000 25,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12outstanding;
(dg) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof;
(f) Indebtedness of a Person which that becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of hereof; provided that (A) such Indebtedness exists at the amount time such Person becomes a Subsidiary and is not created in contemplation of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 or in connection with such Person becoming a Subsidiary and (B) the aggregate principal amount of indebtedness attributable to sale and leaseback transactions Indebtedness permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.
this paragraph (g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, shall not to exceed $5,000,000 in the aggregate at any time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and any Foreign Subsidiaries, in addition to Indebtedness permitted by paragraph (i), in an aggregate amount not for speculative purposesin excess of $5,000,000 at any time outstanding;
(i) Seller Indebtedness of any Foreign Subsidiary to the Borrower or any other Subsidiary; provided that (A) the aggregate principal amount of Indebtedness of Holland & Xxxxxxx to the Borrower and the Domestic Subsidiaries, taken together with guarantees of obligations of Holland & Xxxxxxx permitted under subsection 8.4(g) and investments in Holland & Xxxxxxx permitted under subsection 8.9(d), shall not exceed $25,000,000 at any time outstanding, and (B) the aggregate principal amount of Indebtedness of Foreign Subsidiaries other than Holland & Xxxxxxx to the Borrower and the Domestic Subsidiaries, taken together with guarantees of obligations of Foreign Subsidiaries other than Holland & Xxxxxxx permitted under subsection 8.4(f) and investments in Foreign Subsidiaries other than Holland & Xxxxxxx permitted under subsection 8.9(d), shall not exceed $10,000,000 at any time outstanding;
(j) Refinancing Indebtedness incurred in order to refinance in whole or in part the Obligations; and
(k) other unsecured Indebtedness in an aggregate principal amount not exceed $20,000,000 at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;outstanding.
Appears in 1 contract
Samples: Credit Agreement (Nbty Inc)
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, exceptexcept Indebtedness which (i) has a maturity date no earlier than six months following the maturity date of the Tranche B Term Loans (other than Indebtedness existing on the date hereof, the Loans, Secured Mortgage Indebtedness, Construction Related Indebtedness and unsecured Indebtedness) and (ii) when aggregated with Indebtedness of the Group Members and Indebtedness of Minority Holdings allocable in accordance with GAAP to Holdings or any Consolidated Entity as of the time of determination, would not cause Total Adjusted Outstanding Indebtedness at any time during the period set forth below to exceed the percentage of the Capitalization Value set forth below opposite such period: Period Value Closing Date – June 29, 2006 75% June 30, 2006 – June 29, 2007 70 % June 30, 2007 and thereafter 65 % ; provided, however, that in addition to the above:
(ai) the aggregate outstanding principal amount of any unsecured Indebtedness of the Borrower under the Loan Documents;
(bx) Indebtedness (i) of the Borrower to a Wholly Owned Subsidiary, (ii) of a Domestic Wholly Owned Subsidiary to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount all Consolidated Entities shall not exceed $25,000,000 at any one time outstanding and (y) all Minority Holdings shall not to exceed $5,000,000 100,000,000 at any one time, in excess of the amount of each case other than such unsecured Indebtedness outstanding on the date of this Agreement hereof and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions refinancings thereof (provided such refinancing does not increasing increase the principal amount thereof or shorten the maturity thereof;); and
(f) Indebtedness of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the aggregate outstanding principal amount of any Recourse Secured Mortgage Indebtedness outstanding under clauses (c) and (i) shall not exceed 7.5% of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed Capitalization Value at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereofone time.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed moneySection 7.3(i), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;
Appears in 1 contract
Limitation on Indebtedness. CreateThe Company and any Permitted Affiliate Parent will not, incurand will not permit any of the Restricted Subsidiaries to, assume or suffer to exist Incur any Indebtedness (including Acquired Indebtedness); provided, except:however, that the Company, a Permitted Affiliate Parent and any Restricted Subsidiary may Incur Indebtedness (including Acquired Indebtedness) if, on the date of such Incurrence and after giving effect thereto on a pro forma basis,
(a) (1) the Consolidated Net Leverage Ratio would not exceed 4.50 to and (2) the Consolidated Net Leverage Ratio (including, for the avoidance of doubt, Indebtedness constituting Subordinated Obligations of the Borrower under Company, a Permitted Affiliate Parent and any Restricted Subsidiary as set forth in clauses (1)(A)(iv) and (1)(A)(v) of the Loan Documents;definition of the Consolidated Net Leverage Ratio) would not exceed 5.50 to 1.00.
(b) Indebtedness (iSection 4.09(a) will not prohibit the Incurrence of the Borrower to following Indebtedness:
(1) Indebtedness of the Company, a Wholly Owned SubsidiaryPermitted Affiliate Parent and any of the Restricted Subsidiaries under Credit Facilities, (ii) of a Domestic Wholly Owned Subsidiary to and any Refinancing Indebtedness in respect thereof in the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any one time outstanding not to exceed $5,000,000 in excess exceed:
(A) an amount equal to €80.0 million; plus 63140965_9
(B) an amount equal to the greater of (i) €420 million, plus (b) the amount of such Indebtedness outstanding on the date any Credit Facilities incurred under Section 4.09(a)(2) or any other provision of this Agreement Section 4.09(b) to acquire any property, other assets or shares of Capital Stock of a Person, and (ivii) 5.0% of Total Assets plus
(C) any accrual or accretion of interest that increases the principal amount of Indebtedness under Credit Facilities, plus (C) in the case of any Foreign refinancing of any Indebtedness permitted under this Section 4.09(b)(1) or any portion thereof, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness of the Company or a Permitted Affiliate Parent owing to and held by any Restricted Subsidiary (other than Serviciosa Receivables Entity) or Indebtedness of a Restricted Subsidiary owing to and held by the Borrower Company, a Permitted Affiliate Parent or any Restricted Subsidiary (other than a Receivables Entity); provided, however, that:
(A) any subsequent issuance or transfer of Capital Stock or any other event which results in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced being beneficially held by a promissory note Person other than the Company, a Permitted Affiliate Parent or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;a Restricted Subsidiary (other than a Receivables Entity); and
(cB) any sale or other transfer of any such Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loanPerson other than the Company, a Financing Lease Permitted Affiliate Parent or otherwise) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries a Restricted Subsidiary (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereofother than a Receivables Entity), or incurred hereafter pursuant to existing commitments or agreements, andshall be deemed, in each case, listed on Schedule 7.2 and any refinancingsto constitute an Incurrence of such Indebtedness by the Company, refundingssuch a Permitted Affiliate Parent or such Restricted Subsidiary, renewals or extensions thereof not increasing as the principal amount thereofcase may be;
(f3) (a) Indebtedness represented by the Initial Term Loans, the Existing Senior Secured Notes and the Existing Senior Notes, (b) Indebtedness of the Guarantors represented by guarantees of the Super Senior Credit Facilities (including the Initial Term Loans), the Existing Senior Secured Notes and the Existing Senior Notes, provided that the guarantee of any such Indebtedness is subject to the terms of the Intercreditor Agreement, and (c) Indebtedness represented by the Security Documents;
(4) any Indebtedness (other than the Indebtedness described in Section 4.09(b)(1), Section 4.09(b)(2) and Section 4.09(b)(3)) outstanding on the 2017 Amendment Effective Date;
(5) any Refinancing Indebtedness Incurred in respect of any Indebtedness described in Section 4.09(b)(3), Section 4.09(b)(4), Section 4.09(b)(5), Section 4.09(b)(6), Section 4.09(b) (8), Section 4.09(b)(15), Section 4.09(b)(16), Section 4.09(b)(20) or (21) or Incurred pursuant to Section 4.09(a);
(6) Indebtedness of the Company, a Person which becomes Permitted Affiliate Parent or a Restricted Subsidiary Incurred after the 2017 Amendment Effective Date (A) Incurred and outstanding on the date hereof on which such Restricted Subsidiary was acquired by the Company, a Permitted 63140965_9 Affiliate Parent or any 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, any Permitted Affiliate Parent or any Restricted Subsidiary or was designated a Permitted Affiliate Parent or an Affiliate Subsidiary, (B) Incurred to provide all or a portion of the funds utilized to consummate the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or a Permitted Affiliate Parent or was otherwise acquired by the Company, a Permitted Affiliate Parent or a Restricted Subsidiary, or such Person was designated as a Permitted Affiliate Parent or an Affiliate Subsidiary or (C) Incurred and outstanding on the date on which such Restricted Subsidiary was acquired by the Company, a Permitted Affiliate Parent or 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, a Permitted Affiliate Parent or any Restricted Subsidiary (other than Indebtedness Incurred in an aggregate principal amount at any time outstanding not exceeding contemplation of the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Company, a Permitted Affiliate Parent or a Restricted Subsidiary); provided, however, that with respect to Section 4.09(b)(6)(A) and Section 4.09(b)(6)(B) only, immediately following the consummation of the acquisition of such Restricted Subsidiary by the Company, a Permitted Affiliate Parent or such other transaction, (i) $15,000,000the Company, minus any Permitted Affiliate Parent and the Restricted Subsidiaries would have been able to Incur €1.00 of additional Indebtedness pursuant to Section 4.09(a) after giving pro forma effect to the relevant acquisition or other transaction and the Incurrence of such Indebtedness pursuant to this Section 4.09(b)(6) or (ii) the sum Consolidated Net Leverage Ratio would not be greater than immediately prior to such acquisition or such other transaction;
(7) Indebtedness under Currency Agreements, Commodity Agreements and Interest Rate Agreements entered into for bona fide hedging purposes of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 Company, any Permitted Affiliate Parent or the Restricted Subsidiaries and (B) Unitymedia and its Subsidiaries and, following a Permitted Affiliate Group Designation Date, the Common Holding Company and its Subsidiaries, in each case, and not for speculative purposes (as determined conclusively in good faith by the Board of Directors or senior management of the Company or a Permitted Affiliate Parent);
(8) Indebtedness consisting of (A) mortgage financings, asset backed financings, Purchase Money Obligations or other financings, Incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation or improvement (including, without limitation, in respect of tenant improvement) of property (real or personal), plant, equipment or other assets (including, without limitation, network assets) used or useful in the business of the Company, a Permitted Affiliate Parent or a Restricted Subsidiary or (B) Indebtedness otherwise Incurred to finance the purchase, lease, rental or cost of design, development, construction, installation or improvement (including, without limitation, in respect of tenant improvement) of property (real or personal), plant, equipment or other assets (including, without limitation, network assets) used or useful in the business of the Company, a Permitted Affiliate Parent or a Restricted Subsidiary, whether through the direct purchase of assets or the Capital Stock of any Person owning such assets, and any Refinancing Indebtedness which refinances, replaces or refunds such Indebtedness, in an aggregate outstanding principal amount which, when taken together with the principal 63140965_9 amount of indebtedness attributable to sale and leaseback transactions permitted all other Indebtedness Incurred pursuant to this Section 7.124.09(b)(8), will not exceed the greater of (i) €250.0 million and (ii) 3.0% of Total Assets at any time outstanding so long as such Indebtedness exists on the date of, or commissioning of, or contracting for, such purchase, design, development, construction, installation or improvement, or is created within 270 days thereafter;
(9) Indebtedness in respect of (a) workers’ compensation claims, casualty or liability insurance, self-insurance obligations, performance (including insurance policies), bid, indemnity, surety, judgment, appeal, completion, advance payment, customs, VAT or other tax or other guarantees or other similar bonds, instruments or obligations and completion guarantees and warranties provided by the Company, a Permitted Affiliate Parent or a Restricted Subsidiary or relating to liabilities, obligations or guarantees Incurred in the ordinary course of business (or consistent with past practice or industry practice) or in respect of any government requirement, including, but not limited to, those Incurred to secure health, safety and environmental obligations or rental obligations, (b) letters of credit, bankers’ acceptances, guarantees, or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business (or consistent with past practice or industry practice) or in respect of any government requirement, , including, but not limited to, letters of credit or similar instruments in respect of casualty or liability insurance, self-insurance, unemployment insurance, workers’ compensation obligations, health disability or other benefits, pensions-related obligations and other social security laws, (c) the financing of insurance premiums or take-or-pay obligations contained in supply agreements, in each case, in the ordinary course of business and (D) any customary cash management, cash pooling or netting or setting off arrangements in the ordinary course of business;
(10) Indebtedness Incurred constituting reimbursement obligations with respect to letters of credit issued and bank guarantees in the ordinary course of business provided to lessors of real property or otherwise in connection with the leasing of real property and letters of credit in connection with the maintenance of, or pursuant to the requirements of, environmental or other permits or licenses in respect of any government requirement, or other Indebtedness with respect to reimbursement type obligations regarding the foregoing; provided, however, that upon the drawing of such letters of credit or the Incurrence of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or Incurrence;
(11) Indebtedness arising from agreements of the Company, a Permitted Affiliate Parent or a Restricted Subsidiary providing for indemnification, guarantees or obligations in respect of earn-outs or adjustment of purchase price or similar obligations, in each case, Incurred or assumed in connection with the acquisition or disposition of any business, assets or Capital Stock of the Company, a Permitted Affiliate Parent or a Restricted Subsidiary, provided that (x) the maximum aggregate liability in respect of all such Indebtedness existed shall at no time exceed the time gross proceeds (including the fair market value of non-cash proceeds) actually received (in the case of dispositions) or paid (in the case of acquisitions) by the Company, any Permitted Affiliate Parent and the Restricted Subsidiaries in connection with such corporation became a Subsidiary and was not created in anticipation thereof disposition or acquisition, as applicable; 63140965_9
(12) Indebtedness arising from (i) Bank Products and (yii) immediately after giving effect to the acquisition of such corporation honoring by the Borrower no Default a bank or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations financial institution of a like nature that are incurred check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, not to exceed $5,000,000 provided, however, that in the aggregate at any time outstandingcase of this clause (ii), such Indebtedness is extinguished within thirty Business Days of Incurrence;
(h13) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into guarantees by the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount at Company, a Permitted Affiliate Parent or any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount Restricted Subsidiary of Indebtedness outstanding under clauses or any other obligation or liability of the Company, a Permitted Affiliate Parent or any Restricted Subsidiary (c) and (f) other than of any Indebtedness Incurred by the Company, a Permitted Affiliate Parent or Restricted Subsidiary in violation of this Section 7.24.09); provided, and any refinancingshowever, refundingsthat if the Indebtedness being guaranteed is subordinated in right of payment to the Facilities, renewals or extensions thereof not increasing then such guarantee shall be subordinated substantially to the principal amount thereof and (B) same extent as the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12relevant Indebtedness guaranteed;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;
Appears in 1 contract
Limitation on Indebtedness. Create, incur, assume or suffer to -------------------------- exist any Indebtedness, except:
(a) Indebtedness of the Borrower under the any Loan DocumentsParty pursuant to any Loan Document;
(b) Indebtedness of (i) of the Borrower to a Wholly Owned any Subsidiary, (ii) of a Domestic Wholly Owned any Subsidiary Guarantor (other than any Specified Subsidiary Guarantor) to the Borrower or any other Subsidiary, (iii) any Foreign Subsidiary to any other Foreign Subsidiary, (iv) Holdings to any Subsidiary of Servicios Holdings (other than the Borrower and its Subsidiaries), (v) any member of the Specified Group to any other member of the Specified Group, (vi) Holdings to the Borrower, provided that the proceeds of such Indebtedness are used to make Investments in members of the Specified Group permitted under Sections 7.8(c), (e) or (r), (vii) any member of the Specified Group to Holdings, provided that such Indebtedness was funded with the proceeds of Indebtedness of Holdings to a member of the Specified Group permitted under clause (iv) of this Section 7.2(b) or the proceeds of Restricted Payments received by Holdings from any member of the Specified Group, (viii) any member of the Specified Group to Holdings, the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement Borrower and (ivix) of any Foreign Subsidiary (other than Servicios) of Holdings to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000Holdings, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic SubsidiarySubsidiary of the Borrower; provided that, is evidenced by a promissory note or promissory notes which has or have been pledged in the case of clauses (viii) and (ix), the amount of such -------- Indebtedness shall be subject to the Collateral Agent on terms Sections 7.8(c) and conditions reasonably satisfactory to the Administrative Agent7.8(e);
(c) Indebtedness (including, without limitation, Capital Lease Obligations) of the Borrower Holdings or any Subsidiary incurred of its Subsidiaries, the proceeds of which are used to finance the acquisition acquisition, expansion, refurbishment or construction improvement of fixed or capital assets (whether pursuant to a loanassets, a Financing Lease or otherwise) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) exceed $15,000,000 20,000,000 at any one time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12outstanding;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, hereof and listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing (without any increase in the principal amount thereof);
(e) Guarantee Obligations by Holdings or any of its Subsidiaries of obligations of Holdings or any of its Subsidiaries; provided that Guarantee -------- Obligations of Holdings, the Borrower or any Subsidiary (other than any member of the Specified Group) in respect of Indebtedness of any member of the Specified Group shall be limited as provided in Section 7.8(c);
(f) Indebtedness of a Person which becomes a Subsidiary after members of the date hereof Specified Group to Holdings in an aggregate principal amount not to exceed at any time outstanding not exceeding (i) $15,000,000time, minus (ii) when added to the sum of (A) the aggregate amount of Indebtedness outstanding under clauses (c) and (i) of this equity Investments made in accordance with Section 7.2 and (B) 7.8(e), the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) Acquisition Funding Amount at such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.time; and
(g) additional Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations Holdings or any of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness its Subsidiaries in an aggregate principal amount at any time outstanding not exceeding (ifor Holdings and all such Subsidiaries) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;40,000,000 at any one time outstanding.
Appears in 1 contract
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower under the Loan DocumentsObligations;
(b) Indebtedness (i) of the a Borrower to a Wholly Owned Subsidiary, any Subsidiary and (ii) of a Domestic Wholly any Wholly-Owned Subsidiary that is a Borrower to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, SMC; provided that any such Indebtedness referred to in clauses clause (iiii) and (ivof this subsection 9.2(b) hereof, if shall be expressly subordinated to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent Obligations on terms and conditions reasonably satisfactory to the Administrative Agent;; provided further that each Borrower which is a borrower under clause (ii) of this subsection 9.2(b) shall have executed a note in favor of SMC evidencing such Indebtedness and such note shall have been pledged to the Agent (for the ratable benefit of the Lenders) pursuant to this Agreement or an applicable Security Document.
(c) Indebtedness under currency and commodity Hedging Agreements entered into the ordinary course of the Borrower or any Subsidiary incurred business to finance the acquisition or construction of fixed or capital assets hedge currency fluctuations and commodity prices (whether pursuant to a loan, a Financing Lease or otherwise) in an aggregate principal amount and not exceeding as to the Borrower and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12for speculation);
(d) Indebtedness of the Borrower and its Subsidiaries UK Subsidiary to one or more lenders located in the United Kingdom under the Convertible Subordinated Debentures and credit facilities described on Schedule 6.21 entered into for working capital purposes in the 1997 Convertible Subordinated Notesordinary course of business; provided that the aggregate amount of such Indebtedness may not at any time (i) exceed for the UK Subsidiary 14,500,000, (ii) be secured by any assets (real, personal or mixed) of the UK Subsidiary other than any current assets or of any other Person, or (iii) be supported by any Guarantee Obligation of any Borrower or any Subsidiary;
(e) Indebtedness outstanding of the Italian Subsidiary to one or more lenders located in the Republic of Italy under the credit facilities described on Schedule 6.21 entered into for working capital purposes in the date hereofordinary course of business; provided that the aggregate amount of such Indebtedness may not at any time (i) exceed for the Italian Subsidiary 5,200,000 Euros, (ii) be secured by any assets (real, personal or mixed) of the Italian Subsidiary other than any current assets or of any other Person, or incurred hereafter pursuant to existing commitments (iii) be supported by any Guarantee Obligation of any Borrower or agreements, and, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing Subsidiary (other than the principal amount thereofUK Subsidiary);
(f) Indebtedness of a Person which becomes a Subsidiary after the date hereof French Subsidiaries to one or more lenders located in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum Republic of (A) France under the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than credit facilities described on Schedule 6.21 entered into for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred working capital purposes in the ordinary course of business, not to exceed $5,000,000 in ; provided that the aggregate amount of such Indebtedness may not at any time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus exceed for the French Subsidiaries 4,320,000 Euros, (ii) the sum of be secured by any assets (A) the amount of Indebtedness outstanding under clauses (c) and (freal, personal or mixed) of this Section 7.2either French Subsidiary other than any current assets or of any other Person, and or (iii) be supported by any refinancings, refundings, renewals Guarantee Obligation of any Borrower or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4any Subsidiary; and
(kg) Indebtedness not otherwise permitted by existing as of the foregoing clauses (a) through (j) in an aggregate principal amount at date hereof described on Schedule 6.21, and the Deemed DIP Loans, but excluding any time outstanding refinancing of not to exceed $5,000,000such Indebtedness;
Appears in 1 contract
Samples: Postpetition Credit Agreement (Special Metals Corp)
Limitation on Indebtedness. CreateThe Borrower shall not, and shall not suffer or permit any of its Subsidiaries to, create, incur, assume or assume, suffer to exist exist, or otherwise become or remain directly or indirectly liable with respect to, any Indebtedness, except, in each instance, provided the same is permitted, and solely to the extent permitted, under the Senior Subordinated Notes Indenture:
(a) Indebtedness of the Borrower under the Loan Documentsincurred pursuant to this Agreement;
(b) Indebtedness (i) consisting of the Borrower Contingent Obligations permitted pursuant to a Wholly Owned Subsidiary, (ii) of a Domestic Wholly Owned Subsidiary to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative AgentSection 5.9;
(c) Indebtedness existing on the Closing Date and set forth in Schedule 5.5 including extensions and refinancings thereof which do not increase the principal amount of such Indebtedness as of the Borrower date of such extension or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12refinancing;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof;
(f) Indebtedness of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding, consisting of Capital Lease Obligations or secured by Liens permitted by subsection 5.1(h);
(he) unsecured intercompany Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposespermitted pursuant to subsection 5.4(b);
(if) Seller Subordinated Indebtedness not to exceed $150,000,000 in an the aggregate principal amount at any time outstanding evidenced by the Senior Subordinated Notes issued pursuant to the Senior Subordinated Notes Indenture, plus interest paid in kind and capitalized interest;
(g) other unsecured Indebtedness not exceeding in the aggregate at any time outstanding $3,000,000;
(h) Indebtedness for bank overdrafts incurred in the Ordinary Course of Business that are promptly repaid;
(i) $15,000,000 minus (ii) to the sum of (A) the amount of Indebtedness outstanding extent constituting Indebtedness, obligations secured by Liens permitted under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12subsection 5.1(e);
(j) Indebtedness to the extent constituting Indebtedness, purchase price adjustments in connection with Permitted Acquisitions or under the form of Guarantee Obligations permitted by Section 7.4Groundmasters Acquisition Agreement; and
(k) Subordinated Indebtedness not otherwise permitted by to exceed $5,000,000 in the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding (plus interest paid in kind, plus capitalized interest, less principal payments from time to time made thereon and less principal amounts converted to equity interests of not Holdings pursuant to exceed $5,000,000;the terms thereof) evidenced by the Groundmasters Seller Note issued pursuant to the Groundmasters Acquisition Agreement.
(g) Subsection 5.9(f) of the Credit Agreement shall be amended and restated in its entirety to read as follows:
Appears in 1 contract
Limitation on Indebtedness. CreateNo Credit Party shall, and no Credit Party shall suffer or permit any of its Restricted Subsidiaries to, create, incur, assume assume, permit to exist, or suffer to exist otherwise become or remain directly or indirectly liable with respect to, any Indebtedness, except:
(a) Indebtedness of the Borrower under the Loan DocumentsObligations;
(b) Indebtedness (i) of the Borrower to a Wholly Owned Subsidiary, (ii) of a Domestic Wholly Owned Subsidiary to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding existing on the date of this Agreement Second Amendment Effective Date and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary set forth in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative AgentSchedule 6.5 including Permitted Refinancings thereof;
(c) Indebtedness not to exceed $510,000,000 in the aggregate at any time outstanding, consisting of the Borrower Capital Lease Obligations or any Subsidiary incurred to finance the acquisition secured by Liens permitted by Section 6.1(h) or construction of fixed or capital assets Section 6.1(i) and Permitted Refinancings thereof;
(whether d) unsecured intercompany Indebtedness permitted pursuant to Section 6.4(b);
(e) Subordinated Indebtedness subject to a loan, a Financing Lease or otherwise) Subordination Agreement in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) exceed $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof510,000,000;
(f) Indebtedness of a Person which becomes Restricted Subsidiary of the Borrower acquired pursuant to a Subsidiary after Permitted Acquisition (or a similar Investment permitted by Section 6.4) or Indebtedness of a Target assumed at the date hereof time of a Permitted Acquisition of or such other Investment in an such Target, in each instance, other than revolving credit facilities or commitments therefor; provided that (i) such Indebtedness was not incurred in connection with, or in anticipation or contemplation of, such Permitted Acquisition or other Investment and (ii) the aggregate principal amount of all Indebtedness permitted by this Section 6.5(f) shall not at any time outstanding not exceeding exceed $510,000,000;
(g) unsecured Indebtedness of the Borrower or any of its Restricted Subsidiariesother Credit Party (other than Holdings) consisting of Contingent Acquisition Consideration; provided that (i) the maximum aggregate amount payable with respect to all such Contingent Acquisition Consideration does not exceed $15,000,000120,000,000 in the aggregate at any time outstanding (assuming the remaining maximum performance standards related thereto are satisfied, minus except to the extent all or any portion thereof becomes a fixed, matured or earned amount, in which case such amount shall be deemed the actual amount of such Contingent Acquisition Consideration), and (ii) with respect to any Contingent Acquisition Consideration agreed to after the sum Closing Date, such Contingent Acquisition Consideration is subordinated to the Obligations on terms and conditions reasonably satisfactory to Agent;
(h) Indebtedness consisting of (A) the amount financing of Indebtedness outstanding under clauses (c) and insurance premiums in the Ordinary Course of Business;
(i) endorsements for collection or deposit in the Ordinary Course of this Section 7.2 Business;
(j) Rate Contracts entered into in the Ordinary Course of Business for bona fide hedging purposes and not for speculation with (i) any Lender or an Affiliate of any Lender or (ii) otherwise with Agent’s prior written consent;
(k) Indebtedness arising under indemnity agreements to title insurers to cause such title insurers to issue to Agent title insurance policies;
(l) Indebtedness arising with respect to customary indemnification obligations and purchase price adjustments in favor of (i) sellers in connection with Acquisitions or similar Investments permitted hereunder and (Bii) purchasers in connection with Dispositions permitted under Section 6.2(b);
(m) Indebtedness arising under guaranties made in the amount Ordinary Course of indebtedness attributable to sale and leaseback transactions Business of obligations of any Credit Party (other than Holdings) which obligations are otherwise permitted pursuant to Section 7.12, hereunder; provided that (x) if such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect obligation is subordinated to the acquisition Obligations, such guaranty shall be subordinated to the same extent;
(n) Indebtedness incurred in the Ordinary Course of such corporation Business with respect to surety and appeals bonds, performance bonds and other similar obligations;
(o) Indebtedness consisting of promissory notes issued by Holdings to any stockholder of Holdings or any current or former director, officer, employee, member of management, manager or consultant of Holdings, the Borrower or any Restricted Subsidiary (or their respective immediate family members) to finance the purchase or redemption of Stock permitted by Section 6.8(b); and
(p) other unsecured Indebtedness not exceeding in the aggregate at any time outstanding the greater of $8,5,000,000 or 10% of Consolidated Adjusted EBITDA as of the most recently ended Test Period so long as no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals continuing or extensions thereof not increasing would result from the principal amount thereofincurrence of such Indebtedness.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;
Appears in 1 contract
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower under the any Loan DocumentsParty pursuant to any Loan Document;
(b) Indebtedness (i) of the Borrower to a Wholly Owned Subsidiary, (ii) any Subsidiary and of a Domestic any Wholly Owned Subsidiary Guarantor to the Borrower or any other Subsidiary, (iii) of Servicios Subsidiary provided such Indebtedness is subordinated to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative AgentObligations;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loanincluding, a Financing without limitation, Capital Lease or otherwiseObligations) secured by Liens permitted by Section 7.3(g) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) exceed $15,000,000 5,000,000 at any one time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12outstanding;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, hereof and listed on Schedule 7.2 7.2(d) and any refinancings, refundings, renewals or extensions thereof not increasing (without any increase in the principal amount thereof or any shortening of the maturity of any principal amount thereof);
(e) Guarantee Obligations made in the ordinary course of business by the Borrower or any of its Subsidiaries of obligations of the Borrower or any Subsidiary Guarantor;
(f) Indebtedness in respect of a Person which becomes a Subsidiary the Senior Notes in an aggregate principal amount not to exceed $150,000,000;
(g) Indebtedness in respect of the Senior Subordinated Notes in an aggregate principal amount not to exceed $125,000,000 and any Indebtedness outstanding under the Existing Senior Subordinated Notes after giving effect to the date hereof transactions described in Section 5.1(b)(ii);
(h) Non-Recourse Debt in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,00050,000,000, minus at any time when the senior, unsecured, non credit-enhanced debt of the Borrower is rated lower than either B1 or BB- by Moody's or S&P, respectively, and (ii) $75,000,000, at any time when the sum senior, unsecured, non credit-enhanced debt of (A) the amount of Indebtedness outstanding under clauses (c) Borrower is rated at least as high as B1 and BB- by Moody's and S&P, respectively;
(i) [Reserved]; xxx
(j) additional Indebtedness of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event any of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the its Subsidiaries in an aggregate principal amount thereof.
(gfor the Borrower and all Subsidiaries) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any one time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;.
Appears in 1 contract
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness in respect of the Loans, the Notes and the other obligations of the Borrower under the Loan Documentsthis Agreement;
(b) Indebtedness (i) of the Borrower to a Wholly Owned Subsidiary, (ii) of a Domestic Wholly Owned Subsidiary to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement hereof and (iv) of listed on Schedule III and any Foreign Subsidiary (refinancings thereof provided that the principal amount thereof is not increased thereby and the other than Servicios) material terms thereof are on the whole no less favorable to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if obligor thereon than those applicable to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to Indebtedness so listed at the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agenttime of such refinancing;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) $15,000,000 at any time outstanding minus the Indebtedness in existence on the date hereof secured by the Park Avenue South Mortgages and (ii) upon the amount repayment of such existing Indebtedness outstanding under clauses (f) and (i) in full, any Indebtedness secured by the real property which is the subject of this Section 7.2 and the amount Park Avenue South Mortgages provided that recourse for the payment of indebtedness attributable such Indebtedness is limited to sale and leaseback transactions permitted pursuant to Section 7.12such real property;
(d) Indebtedness in respect of the undrawn portion of the face amount of letters of credit issued for the account of the Borrower or any other Restricted Subsidiary of Holdings in an aggregate amount not exceeding for the Borrower and its such Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes$7,500,000 at any one time outstanding;
(e) Indebtedness outstanding on of a corporation which becomes a Restricted Subsidiary of Holdings or which is merged into a Restricted Subsidiary of Holdings after the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof;
(f) Indebtedness of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (xi) such Indebtedness existed at the time such corporation became a Restricted Subsidiary of Holdings or was merged into a Restricted Subsidiary of Holdings, whichever may be the case, and was not created in anticipation thereof and (yii) immediately after giving effect to the acquisition or merger of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.;
(gf) Indebtedness constituting deposits of the Borrower and the Restricted Subsidiaries of Holdings under Financing Leases with respect to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of businessnew equipment, not to exceed exceeding $5,000,000 in the aggregate principal amount at any one time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (iig) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12Seller Notes;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;
Appears in 1 contract
Limitation on Indebtedness. Create, incur, assume or suffer to exist (in each case, to "INCUR") any Indebtedness, except:
(a) Indebtedness of the Borrower under the any Loan DocumentsParty pursuant to any Loan Document;
(b) Indebtedness (i) of between the Borrower to and a Wholly Owned SubsidiarySubsidiary or between one Subsidiary and another; PROVIDED that (a) if the Borrower is the obligor on such Indebtedness, (ii) of a Domestic Wholly Owned Subsidiary such Indebtedness is expressly subordinated in liquidation to the Borrower or any other Subsidiaryprior payment in full in cash of all Obligations; and (b) if a Subsidiary that is not a Subsidiary Guarantor is the obligor on such Indebtedness, (iii) of Servicios such Indebtedness owing to the Borrower or any Subsidiary Guarantor, together with all intercompany Indebtedness owing from all Subsidiaries that are not Subsidiary Guarantors to the Borrower or a Subsidiary Guarantor, does not exceed $5,000,000 in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agentoutstanding;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwisesecured by Liens permitted by Section 7.3(g) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) exceed $15,000,000 2,000,000 at any one time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12outstanding;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated NotesCapital Lease Obligations in an aggregate principal amount not to exceed $5,000,000 at any one time outstanding;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, hereof and listed on Schedule 7.2 7.2(e) to the Disclosure Letter and any refinancings, refundings, renewals or extensions thereof not increasing (without any increase in the principal amount thereof);
(f) unsecured Indebtedness of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are Loan Party incurred in the ordinary course of business, not to exceed $5,000,000 business as a result of open account arrangements or accrued expenses in the aggregate at current account payables;
(g) Guarantee Obligations of any time outstanding;Indebtedness permitted by this Section 7.2; and
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into required by Section 6.9;
(i) unsecured Indebtedness (x) in respect of a revolving credit facility (the "FRENCH REVOLVER") for the purpose of funding the working capital needs in the ordinary course of business for hedging purposes and not for speculative purposes;
of Axiohm S.A.R.L.; PROVIDED that (i) Seller Indebtedness the Dollar equivalent (determined in an good faith by the Borrower) of the aggregate outstanding principal amount thereof (the "AXIOHM S.A.R.L. EQUIVALENT OUTSTANDINGS") shall not exceed $10,000,000 at any one time outstanding not exceeding (i) $15,000,000 minus and (ii) on the date of any incurrence thereof, after giving effect thereto, the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;Axiohm S.A.R.
Appears in 1 contract
Samples: Credit Agreement (Axiohm Transaction Solutions Inc)
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower under the any Loan DocumentsParty pursuant to any Loan Document;
(b) Indebtedness (i) of the Borrower to a Wholly Owned Subsidiary, (ii) any Subsidiary and of a Domestic any Wholly Owned Subsidiary Guarantor to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, hereof and listed on Schedule 7.2 6.2(c) and any refinancings, refundings, renewals or extensions thereof not increasing (without any increase in the principal amount thereof or any shortening of the maturity of any principal amount thereof);
(d) Guarantee Obligations made in the ordinary course of business by the Borrower or any of its Subsidiaries of obligations of the Borrower or any Subsidiary Guarantor;
(e) Guarantee Obligations of the Borrower or any Subsidiary Guarantor in respect of any other Indebtedness permitted under this Section 6.2;
(f) Indebtedness of a Person which becomes a Subsidiary after Holdings pursuant to the date hereof Holdings Subordinated Guaranty;
(g) Indebtedness in respect of acceptances, letters of credit or similar instruments in the ordinary course of the Borrower's exploration and production activities in an aggregate face or principal amount at not to exceed $30,000,000;
(h) Indebtedness of any time outstanding not exceeding Loan Party to Parent or its Affiliates (other than the Loan Parties) that has been subordinated to such Loan Party's Obligations on terms reasonably satisfactory to the Administrative Agent;
(i) $15,000,000senior unsecured notes and senior unsecured subordinated notes (collectively, minus (iithe "New Notes") issued by the sum Borrower or Holdings containing covenants, events of (A) default and other terms customary for such transactions or otherwise less restrictive to Holdings and its Subsidiaries than those set forth in this Agreement or otherwise reasonably satisfactory to the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, Administrative Agent; provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary interest rate applicable thereto does not exceed the then applicable market interest rate and was not created in anticipation thereof the maturity date therefor is no earlier than the date one year and one day after the Maturity Date, (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred exists at the time of the issuance of such notes or would result therefrom and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (iiz) the sum requirements of (ASection 2.7(a) are complied with in connection therewith for the amount Net Cash Proceeds of any Indebtedness outstanding under clauses (c) and (f) of permitted by this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B6.2(i) the amount in excess of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12$150,000,000;
(j) Indebtedness in the form respect of Guarantee Obligations permitted by any standby letters of credit that may be delivered in connection with Section 7.46.17; and
(k) additional Indebtedness not otherwise permitted by of the foregoing clauses (a) through (j) Borrower or any of its Subsidiaries in an aggregate principal amount at any time outstanding of (for the Borrower and all Subsidiaries) not to exceed $5,000,000;50,000,000 at any one time outstanding.
Appears in 1 contract
Limitation on Indebtedness. CreateNo Credit Party shall, and no Credit Party shall suffer or permit any of its Restricted Subsidiaries to, create, incur, assume assume, permit to exist, or suffer to exist otherwise become or remain directly or indirectly liable with respect to, any Indebtedness, except:
(a) Indebtedness of the Borrower under the Loan DocumentsObligations;
(b) Indebtedness consisting of Contingent Obligations permitted pursuant to Section 5.8;
(ic) Indebtedness existing on the Closing Date and set forth in Schedule 5.5 including Permitted Refinancings thereof;
(d) Indebtedness not to exceed $75,000,000100,000,000 in the aggregate at any time outstanding, consisting of Capital Lease Obligations or secured by Liens permitted by Section 5.1(h) and Permitted Refinancings thereof;
(e) unsecured intercompany Indebtedness permitted pursuant to Section 5.4(b) and unsecured intercompany Indebtedness owed by any Credit Party or Restricted Subsidiary thereof to any Constellium Entity;
(f) unsecured Subordinated Indebtedness;
(g) Indebtedness of the Borrower to a Wholly Owned SubsidiaryRexam evidenced by or arising under the Rexam Financing Documents; provided that the aggregate principal amount of such Indebtedness shall not exceed $25,000,000, less the aggregate amount of all repayments, repurchases, redemptions, rebates or credits, whether option or mandatory, in respect thereof, plus interest thereon (iiwhether or not capitalized) at the rate provided in the Rexam Financing Documents and any Permitted Refinancing thereof;
(h) Indebtedness of a Domestic Wholly Owned Subsidiary Holdings and Wise Alloys Finance Corporation to the Borrower Senior Noteholders evidenced by or arising under the Senior Notes Documents and any Permitted Refinancing thereof; provided that the aggregate principal amount of such Indebtedness shall not at any time exceed $650,000,000;
(i) other Subsidiaryunsecured Indebtedness owing to Persons that are not Affiliates of the Credit Parties not exceeding $100,000,000 in the aggregate at any time outstanding; and
(j) Indebtedness incurred under any AB Qualified Receivables Financing; provided that, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof;
(f) Indebtedness of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
clause (j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness shall not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;400,000,000.
Appears in 1 contract
Samples: Credit Agreement (Constellium N.V.)
Limitation on Indebtedness. Create, incur, assume or suffer to exist (in each case, to "Incur") any IndebtednessIndebtedness or issue any Preferred Stock, except:
(a) Indebtedness of the Borrower under the any Loan DocumentsParty pursuant to any Loan Document;
(b) Indebtedness (i) of the Borrower Details to a Wholly Owned Subsidiary, (ii) any Subsidiary and of a Domestic any Wholly Owned Subsidiary Guarantor to the Borrower Details or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwisesecured by Liens permitted by Section 7.3(g) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) exceed $15,000,000 4,000,000 at any one time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12outstanding;
(d) Indebtedness of Capital Lease Obligations existing on the Borrower date hereof and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notesother Capital Lease Obligations, which other Capital Lease Obligations shall not exceed $10,000,000 aggregate principal amount at any one time outstanding;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, hereof and listed on Schedule 7.2 7.2(e) and any refinancings, refundings, renewals or extensions thereof not increasing (without any increase in the principal amount thereof);
(f) guarantees made in the ordinary course of business by Details or any of its Subsidiaries of obligations of any Wholly Owned Subsidiary Guarantor;
(i) Indebtedness of a Person which becomes a Subsidiary after Details in respect of the date hereof Senior Subordinated Notes in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 100,000,000 and (ii) Indebtedness of the Company in respect of the aggregate at any time outstandingCompany Zeros in an aggregate, unaccreted principal amount not to exceed $60,100,000;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into of the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness Company evidenced by the increase in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) of the amount Company Zeros in connection with the payment in kind of indebtedness attributable interest thereon prior to sale and leaseback transactions permitted pursuant to Section 7.12the fifth anniversary of the Closing Date;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;
Appears in 1 contract
Samples: Credit Agreement (Ddi Corp)
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower Credit Parties under the Loan Documents;; 107 101
(b) Indebtedness (i) Indebtedness among the Credit Parties arising as a result of the Borrower to a Wholly Owned Subsidiary, intercompany loans and (ii) Indebtedness of a Domestic Wholly Owned Subsidiary Foreign Subsidiaries of US Borrower that are not Credit Parties to the Borrower or any Credit Parties and the other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary Subsidiaries in an aggregate principal amount at any time Equivalent Amount outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount 15,000,000 at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agentone time;
(c) Indebtedness of Subsidiaries of Holdings outstanding on the Chips Closing Date and listed on Schedule 8.2 and extensions, renewals or replacements thereof provided that no such extension, renewal or replacement shall increase the principal amount thereof, except that the Indebtedness of the Canadian Borrower or any Subsidiary incurred to finance used in respect of Financing Leases and the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) in Canada/Quebec Agreement on Industrial Development may be increased by an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 exceed C$2,250,000 and the amount Indebtedness of indebtedness attributable Circo Caribe, Inc. under a line of credit, may be replaced or refinanced with a line of credit not to sale and leaseback transactions permitted pursuant to Section 7.12exceed $3,000,000;
(d) Indebtedness resulting from the endorsement of negotiable instruments in the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notesordinary course of business;
(e) Indebtedness of Subsidiaries of Holdings in respect of obligations under Financing Leases and purchase money Indebtedness in an aggregate amount outstanding on the date hereof, or incurred hereafter pursuant not to existing commitments or agreements, and, in each case, listed on Schedule 7.2 and exceed Equivalent Amount of $25,000,000 at any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereofone time;
(f) Indebtedness in respect of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.Interest Rate Agreements;
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts any Credit Party (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and Holdings) to any other obligations Credit Party from intercompany transfers of a like nature that are incurred assets made in the ordinary course of business, not business or to exceed $5,000,000 in the aggregate at any time outstandingextent permitted under subsections 8.6 and 8.9;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposesGuarantee Obligations permitted by subsection 8.4;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding subject to Liens permitted under clauses subsections 8.3(b), (c) ), (d), and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12e);
(j) Indebtedness incurred in connection with the form sale of Guarantee Obligations the accounts receivable of Holdings and its Subsidiaries in connection with a trade receivables financing transaction otherwise permitted by Section 7.4; andunder subsection 8.6(i);
(k) additional Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) of Subsidiaries of Holdings in an aggregate principal amount outstanding not to exceed the Equivalent Amount of $35,000,000 at any one time;
(l) at any time following the termination of the US Revolving Credit Commitment, Indebtedness of Subsidiaries of Holdings in respect of unsecured revolving lines of credit in an aggregate amount outstanding of not to exceed $5,000,000100,000,000 at any one time;
(i) unsecured Indebtedness of the Subsidiaries of Holdings to the seller in any Permitted Acquisition or (ii) Indebtedness assumed in connection with any 108 102 Permitted Acquisition in an aggregate amount for clauses (i) and (ii) for all Permitted Acquisitions not to exceed the Equivalent Amount of $30,000,000; provided at the time of incurrence the requirements of subsection 8.9(k) shall be satisfied;
(n) Indebtedness of any Foreign Subsidiary of the US Borrower which is not a Credit Party for working capital purposes in an aggregate amount not to exceed $15,000,000 at one time outstanding; provided that either (i) each such working capital facility is supported by a US Letter of Credit and the Foreign Subsidiary signs the related Letter of Credit Application with the US Borrower and grants the Collateral Agent a security interest in its material properties as collateral security for its Accommodation Obligations or (ii) the availability under the US Revolving Credit Commitments shall be reduced by the amount of each such working capital facility;
Appears in 1 contract
Samples: Credit Agreement (Viasystems Inc)
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) The Company shall not, and shall not permit any Restricted Subsidiary to, Incur any Indebtedness; provided, however, that the Company or any Guarantor may Incur Indebtedness of if on the Borrower under date thereof, and giving pro forma effect to the Loan Documents;Incurrence thereof, the Consolidated Coverage Ratio would be greater than 2:1.
(b) Indebtedness Notwithstanding Section 4.12(a), the Company and its Restricted Subsidiaries may Incur the following Indebtedness: (i) of Indebtedness under the Borrower to a Wholly Owned Subsidiary, (ii) of a Domestic Wholly Owned Subsidiary to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary Revolving Credit Facility in an aggregate principal amount outstanding at any time outstanding not to exceed $5,000,000 in excess of 140 million (less the amount of such any permanent reductions in the amount of available borrowings under the Revolving Credit Facility as a result of repayments made thereunder pursuant to Section 4.15; (ii) Indebtedness outstanding on under any Non- Recourse FF&E Financing or the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses Vicksburg Note; (iii) Indebtedness under one or more Recourse FF&E Financings, that, when added to all Indebtedness then outstanding under other Recourse FF&E Financings, and all refinancing Indebtedness with respect thereto, does not exceed $15 million in the aggregate; (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereofIssue Date immediately after issuance of the Notes and application of the proceeds therefrom (other than Indebtedness described in clause (i), (ii), (iii), (v), (vi) or incurred hereafter pursuant (viii) of this Section 4.12(b)), provided that the amount thereof, together with any Refinancing Indebtedness with respect thereto, does not exceed the amount outstanding on the Issue Date; (v) Indebtedness evidenced by the Notes, the New Notes and the Subsidiary Guarantees; (vi) Indebtedness of the Company owing to existing commitments and held by any Guarantor or agreementsIndebtedness of a Restricted Subsidiary owing to and held by the Company; provided, andhowever, that any subsequent issuance or transfer of any Capital Stock or other event which results in any such Guarantor ceasing to be a Guarantor or any subsequent transfer of any such Indebtedness (except to the Company or a Guarantor) shall be deemed, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing to constitute the principal amount thereof;
(f) Indebtedness Incurrence of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.
issuer; (g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;
(hvii) Indebtedness under Interest Rate Protection Agreements and Hedge related to Indebtedness permitted under the Indenture; provided, however, such Interest Rate Protection Agreements entered into do not increase the ordinary course consolidated Indebtedness of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount the Company outstanding at any time outstanding other than as a result of fluctuations in the exchange rates or interest rates or by reason of customary fees, indemnities and compensation payable thereunder; (viii) Indebtedness under the Gem Notes; provided, however, that any event that results in any Gem Note ceasing to meet the conditions of the definition thereof shall be deemed to constitute the Incurrence of such Indebtedness by the obligor thereof; (ix) Indebtedness Incurred solely in respect of performance bonds or completion guarantees, to the extent that such Incurrence does not exceeding result in the Incurrence of any obligation for the payment of borrowed money to others; (ix) $15,000,000 minus (ii) the sum of (A) the amount Refinancing Indebtedness Incurred in respect of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted Incurred pursuant to Section 7.12;
(j4.12(a) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by or the foregoing clauses (aii), (iii) through and (jiv); (xi) Indebtedness arising out of standby letters of credit covering workers compensation, performance or similar non-Indebtedness obligations in an aggregate amount not to exceed $500,000 at any time outstanding; and (xii) Indebtedness (other than Indebtedness permitted by Section 4.12(a) or elsewhere in this Section 4.12(b)) in an aggregate principal amount outstanding at any time outstanding of not to exceed $5,000,000;5 million.
(c) For purposes of determining the outstanding principal amount of any particular Indebtedness Incurred pursuant to this Section 4.12, (i) Indebtedness permitted by this section need not be permitted solely by reference to one provision permitting such Indebtedness but may be permitted in part by one such provision and in part by one or more other provisions of this provision permitting such Indebtedness and (ii) in the event that Indebtedness or any portion thereof meets the criteria of more than one of the types of Indebtedness described in this section, the Company, in its sole discretion, shall classify such Indebtedness and only be required to include the amount of such Indebtedness in one of such clauses.
Appears in 1 contract
Samples: Indenture (Ameristar Casinos Inc)
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower under the any Loan DocumentsParty pursuant to any Loan Document;
(b) Indebtedness of (i) of the Borrower to a Wholly Owned Subsidiary, any Subsidiary and (ii) of a Domestic Wholly Owned any Subsidiary to the Borrower or any other Subsidiary; provided that, (iii) the aggregate amount of Servicios to the Borrower or any Indebtedness of any Subsidiary in an aggregate principal amount at that is not a Loan Party to any time outstanding Loan Party shall not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any one time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agentoutstanding;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loanincluding, a Financing without limitation, Capital Lease or otherwiseObligations) secured by Liens permitted by Section 7.3(h) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) exceed $15,000,000 5,000,000 at any one time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12outstanding;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, hereof and listed on Schedule 7.2 7.2(d) and any refinancings, refundings, renewals or extensions thereof not increasing (without any increase in the principal amount thereof (other than by the refinancing costs thereof including premiums and make-whole payments) or any shortening of the maturity of any principal amount thereof);
(e) Guarantee Obligations made in the ordinary course of business by the Borrower or any of its Subsidiaries of obligations of the Borrower or any Subsidiary Guarantor;
(f) unsecured Recourse Indebtedness of a Person the REIT and its Subsidiaries which (i) shall (other than the Bilateral Line of Credit) mature at least one year after the Revolving Credit Termination Date and (ii) shall not exceed on any date of determination, an amount equal to 15% of Total Asset Value on such date at any one time outstanding;
(g) Non-Recourse Indebtedness of any Subsidiary that becomes a Subsidiary of the Borrower after the date hereof in an aggregate principal amount accordance with Section 7.7(g), which exists at any the time outstanding not exceeding (i) $15,000,000such Person becomes a Subsidiary; provided that, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time of such corporation became a Subsidiary acquisition and was not created in anticipation thereof connection therewith or in contemplation thereof, and (y) the Borrower shall deliver to the Administrative Agent a pro forma Compliance Certificate (i) certifying that, immediately prior to and after giving effect to such additional Indebtedness, no Default or Event of Default shall exist and (ii) containing all information and calculations necessary, and taking into consideration such additional Indebtedness, for determining pro forma compliance with the provisions of Section 7.1 hereof
(h) Non-Recourse Indebtedness (other than Permitted Construction Financing) in respect of the Non-Recourse Subsidiary Borrowers that is secured by either (i) Real Property owned or leased by such Non-Recourse Subsidiary Borrowers and any related Property permitted by Section 7.3(k) or (ii) the Capital Stock of any Subsidiary of such Non-Recourse Subsidiary Borrower that is also a Non-Recourse Subsidiary Borrower, including, in either case, any refinancing of any Indebtedness incurred pursuant to Section 7.2(d); provided that, with respect to any of the foregoing Indebtedness:
(A) none of the Group Members provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness) or is directly or indirectly liable (as guarantor or otherwise), other than (i) any Subsidiary of the Borrower that is a direct or indirect parent or Subsidiary of such Non-Recourse Subsidiary Borrower or (ii) the Non-Recourse Parent Guarantor as guarantor (x) to the extent permitted by Section 7.2(j) for fraud, misrepresentation, misapplication of cash, waste, environmental claims and liabilities, prohibited transfers, violations of special purpose entity covenants and other circumstances customarily excluded by institutional lenders from exculpation provisions and included in separate guarantee or indemnification agreements in non-recourse financing of real estate or (y) to the extent otherwise permitted by Section 7.2(f); and
(B) as to which the lenders thereunder will not have any recourse to the Capital Stock or assets of the Group Members other than the assets securing such Indebtedness, additions, accessions and improvements thereto and proceeds thereof, the Capital Stock of the Non-Recourse Subsidiary Borrower that is the borrower under such Indebtedness or the Capital Stock of any direct or indirect parent of such Non-Recourse Subsidiary Borrower and, in the case of a Non-Recourse Parent Guarantor, recourse against such Non-Recourse Parent Guarantor for fraud, misrepresentation, misapplication of cash, waste, environmental claims and liabilities, prohibited transfers, violations of special purpose entity covenants and other circumstances customarily excluded by institutional lenders from exculpation provisions and included in separate guarantee or indemnification agreements in non-recourse financings of real estate, and Guarantee Obligations permitted by Section 7.2(f); and provided, further, that, (x) immediately prior to and after giving effect to the acquisition incurrence of such corporation by the Borrower Indebtedness, no Default or Event of Default shall have occurred and be continuing, and (y) after giving pro forma effect to such Indebtedness and the use of proceeds therefrom, the Borrower shall be in compliance with the provisions of Section 7.1 hereof. For the avoidance of doubt, if at any refinancingstime following the Closing Date any Group Member acquires the remaining Capital Stock of any Joint Venture not owned by the Group Members on the Closing Date, refundings, renewals or extensions thereof not increasing the principal amount thereof.any Real Property owned by such Joint Venture shall be included in clause (i) of this Section 7.2(h);
(gi) Indebtedness constituting deposits Permitted Construction Financing of any Non-Recourse Subsidiary Borrower; provided that, with respect to secure any of the performance foregoing Indebtedness:
(A) none of bidsthe Group Members provides credit support of any kind (including any undertaking, trade contracts agreement or instrument that would constitute Indebtedness) or is directly or indirectly liable (as guarantor or otherwise), other than (i) any Subsidiary of the Borrower that is a direct or indirect parent or Subsidiary of such Non-Recourse Subsidiary Borrower or (ii) the Non-Recourse Parent Guarantor as guarantor (x) to the extent permitted by Section 7.2(j) for borrowed moneyfraud, misrepresentation, misapplication of cash, waste, environmental claims and liabilities, prohibited transfers, violations of special purpose entity covenants and other circumstances customarily excluded by institutional lenders from exculpation provisions and included in separate non-monetary completion guarantee or indemnification agreements in construction financing of real estate or (y) to the extent otherwise permitted by Section 7.2(f), including customary monetary completion and repayment guarantees; and
(B) as to which the lenders thereunder will not have any recourse to the Capital Stock or assets of the Group Members other than the assets securing such Indebtedness, additions, accessions and improvements thereto and proceeds thereof and, in the case of a Non-Recourse Parent Guarantor, recourse against such Non-Recourse Parent Guarantor for (x) fraud, misrepresentation, misapplication of cash, waste, environmental claims and liabilities, prohibited transfers, violations of special purpose entity covenants and other circumstances customarily excluded by institutional lenders from exculpation provisions and included in separate non-monetary completion guarantee or indemnification agreements in construction financing of real estate, and or (y) to the extent otherwise permitted by Section 7.2(f), including customary monetary completion and repayment guarantees; provided, further, that, (x) immediately prior to and after giving effect to the incurrence of such Indebtedness, no Default or Event of Default shall have occurred and be continuing, and (y) after giving pro forma effect to such Indebtedness and the use of proceeds therefrom, the Borrower shall be in compliance with the provisions of Section 7.1 hereof;
(j) Permitted Limited Recourse Guarantees of Indebtedness permitted by Sections 7.2(h) and (i), provided that, the sum of, without duplication, (x) the aggregate amount of Permitted Limited Recourse Guarantees comprised of monetary completion or payment guarantees plus (y) the aggregate amount of Permitted Limited Recourse Guarantees required by GAAP to be reflected as a liability on the consolidated balance sheet of the Group Members shall not exceed the amount permitted to be incurred under Section 7.2(f) (together with all other Indebtedness incurred pursuant to such Section at such time) at any one time outstanding;
(k) unsecured Indebtedness incurred by the Borrower and its Subsidiaries to finance customary leasehold improvements required by the terms of, or as a condition to the entering into of, operating leases, statutory obligationssubleases, surety licenses, occupancy agreements and appeal bonds rights-of-use entered into by the Borrower and performance bonds and other obligations of its Subsidiaries in their respective capacities as lessor or a like nature that are incurred similar capacity in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;; and
(hl) additional Indebtedness under Interest Rate Protection Agreements of the Borrower and Hedge Agreements entered into the ordinary course of business for hedging purposes and its Subsidiaries not for speculative purposes;
(i) Seller Indebtedness otherwise permitted hereunder in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;2,500,000 at any one time outstanding.
Appears in 1 contract
Limitation on Indebtedness. CreateThe Parent will not and the Company will not, and will not suffer or permit any of its Subsidiaries to, create, incur, assume or assume, suffer to exist exist, or otherwise become or remain directly or indirectly liable with respect to, any Indebtedness, except:
(a) Indebtedness of existing on the Borrower under the Loan DocumentsEffective Date and described on Schedule 8.04(a), and in each case, refinancings or renewals thereof;
(b) Indebtedness (i) of the Borrower incurred pursuant to a Wholly Owned Subsidiary, (ii) of a Domestic Wholly Owned Subsidiary to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative AgentLoan Document;
(c) Indebtedness of among the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) in an aggregate principal amount not exceeding as to the Borrower Company and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12Subsidiaries;
(d) Indebtedness of the Borrower Company and its Subsidiaries under the Convertible Subordinated Debentures secured by Liens permitted by Section 8.01(h) and the 1997 Convertible Subordinated Notes8.01(i);
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof;
(f) unsecured Indebtedness of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate Borrowers at any time outstanding;
(f) letters of credit and reimbursement obligations of the Company and/or its Subsidiaries under (x) documentary letters of credit and (y) letters of credit, so long as the sum of undrawn face amounts and reimbursement obligations under this clause (y) shall not exceed $55,000,000;
(g) Indebtedness (i) of the Company under the Senior Notes in an aggregate principal amount of $125,000,000 and (ii) constituting a guaranty by the Parent of the Senior Notes on a basis that is pari passu with the obligations owed by the Parent to the Banks and, in each case, any refinancings or renewals thereof;
(h) Indebtedness arising under Interest Rate Protection Agreements and Hedge Agreements entered into by the ordinary course Company or any of business for hedging purposes and its Subsidiaries relating to Indebtedness permitted hereunder so long as the notional amount thereof does not for speculative purposesexceed the principal amount of such Indebtedness;
(i) Seller unsecured guaranties by the Parent of any Indebtedness in an aggregate principal amount at any time of its Subsidiaries permitted to be outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;hereunder; and
(j) Indebtedness in of the form Subsidiaries of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness the Company not otherwise permitted by the foregoing clauses (a) through (j) this Section 8.04, in an aggregate amount not to exceed, when added to the principal amount of obligations secured by Liens securing Secured Obligations and permitted pursuant to Section 8.01(l), 10% of Consolidated Net Tangible Assets at such time. No provision of the foregoing shall permit any time outstanding Subsidiary of not the Company to exceed $5,000,000;guaranty any amounts under or in connection with the Senior Notes.
Appears in 1 contract
Samples: Credit Agreement (Us Industries Inc)
Limitation on Indebtedness. Create, incur, assume or suffer to exist (in each case, to "Incur") any Indebtedness, except:
(a) Indebtedness of the Borrower under the any Loan DocumentsParty pursuant to any Loan Document;
(b) Indebtedness (i) of the Borrower to a Wholly Owned Subsidiary, (ii) any Subsidiary and of a Domestic any Wholly Owned Subsidiary Guarantor to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwisesecured by Liens permitted by Section 7.3(g) in an aggregate principal amount not exceeding as to exceed, when added to the Borrower and its Subsidiaries Capital Lease Obligations permitted under paragraph (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (id) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.127.2, $30,000,000 at any one time outstanding;
(d) Capital Lease Obligations in an aggregate principal amount not to exceed, when added to the Indebtedness permitted under paragraph (c) of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notesthis Section 7.2, $30,000,000 at any one time outstanding;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, hereof and listed on Schedule 7.2 7.2(e) and any refinancings, refundings, renewals or extensions thereof not increasing (without any increase in the principal amount thereof);
(f) Indebtedness guarantees made in the ordinary course of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation business by the Borrower no Default or Event any of Default shall have occurred and be continuing, and its Subsidiaries of obligations of any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.Wholly Owned Subsidiary Guarantor;
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at under any time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into to protect the ordinary course Borrower or any of business for hedging purposes its Subsidiaries against fluctuations in interest rates and not for speculative purposes;
(h) other Indebtedness (contingent or direct) not to exceed $6,000,000 outstanding at any one time in respect of letters of credit issued for the account of the Borrower or any of its Subsidiaries in the conduct of their business in the ordinary course and any Guarantee Obligations thereof;
(i) Seller Indebtedness of the Borrower under the remaining Senior Notes outstanding upon the consummation of the Debt Tender Offer in an aggregate principal amount not to exceed $6,000,000 at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12outstanding;
(j) Indebtedness renewals and extensions (in the form same or lesser principal amount on similar terms and conditions and in any case no less favorable to the interests of Guarantee Obligations permitted by Section 7.4; andthe Lenders) of any Indebtedness listed in the foregoing clauses;
(k) Indebtedness not otherwise permitted by of the foregoing clauses (a) through (j) Borrower and its Subsidiaries to Commodity Credit Corporation in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;the lesser of (i)
Appears in 1 contract
Limitation on Indebtedness. CreateThe Company and any Permitted Affiliate Parent will not, incurand will not permit any of the Restricted Subsidiaries to, assume or suffer to exist Incur any Indebtedness (including Acquired Indebtedness); provided, except:however, that the Company, a Permitted Affiliate Parent and any Restricted Subsidiary may Incur Indebtedness (including Acquired Indebtedness) if, on the date of such Incurrence and after giving effect thereto on a pro forma basis,
(a) (1) the Consolidated Net Leverage Ratio would not exceed 4.50 to and (2) the Consolidated Net Leverage Ratio (including, for the avoidance of doubt, Indebtedness constituting Subordinated Obligations of the Borrower under Company, a Permitted Affiliate Parent and any Restricted Subsidiary as set forth in clauses (1)(A)(iv) and (1)(A)(v) of the Loan Documents;definition of the Consolidated Net Leverage Ratio) would not exceed 5.50 to 1.00.
(b) Indebtedness (iSection 4.09(a) will not prohibit the Incurrence of the Borrower to following Indebtedness:
(1) Indebtedness of the Company, a Wholly Owned SubsidiaryPermitted Affiliate Parent and any of the Restricted Subsidiaries under Credit Facilities, (ii) of a Domestic Wholly Owned Subsidiary to and any Refinancing Indebtedness in respect thereof in the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any one time outstanding not to exceed $5,000,000 in excess exceed:
(A) an amount equal to €80.0 million; plus
(B) an amount equal to the greater of (i) €420 million, plus (b) the amount of such Indebtedness outstanding on the date any Credit Facilities incurred under Section 4.09(a)(2) or any other provision of this Agreement Section 4.09(b) to acquire any property, other assets or shares of Capital Stock of a Person, and (ivii) 5.0% of Total Assets plus
(C) any accrual or accretion of interest that increases the principal amount of Indebtedness under Credit Facilities, plus (C) in the case of any Foreign refinancing of any Indebtedness permitted under this Section 4.09(b)(1) or any portion thereof, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness of the Company or a Permitted Affiliate Parent owing to and held by any Restricted Subsidiary (other than Serviciosa Receivables Entity) or Indebtedness of a Restricted Subsidiary owing to and held by the Borrower Company, a Permitted Affiliate Parent or any Restricted Subsidiary (other than a Receivables Entity); provided, however, that:
(A) any subsequent issuance or transfer of Capital Stock or any other event which results in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced being beneficially held by a promissory note Person other than the Company, a Permitted Affiliate Parent or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;a Restricted Subsidiary (other than a Receivables Entity); and
(cB) any sale or other transfer of any such Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loanPerson other than the Company, a Financing Lease Permitted Affiliate Parent or otherwise) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries a Restricted Subsidiary (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereofother than a Receivables Entity), or incurred hereafter pursuant to existing commitments or agreements, andshall be deemed, in each case, listed on Schedule 7.2 and any refinancingsto constitute an Incurrence of such Indebtedness by the Company, refundingssuch a Permitted Affiliate Parent or such Restricted Subsidiary, renewals or extensions thereof not increasing as the principal amount thereofcase may be;
(f3) (a) Indebtedness represented by the Initial Term Loans, the Existing Senior Secured Notes and the Existing Senior Notes, (b) Indebtedness of the Guarantors represented by guarantees of the Senior Credit Facilities (including the Initial Term Loans), the Existing Senior Secured Notes and the Existing Senior Notes, provided that the guarantee of any such Indebtedness is subject to the terms of the Intercreditor Agreement, and (c) Indebtedness represented by the Security Documents;
(4) any Indebtedness (other than the Indebtedness described in Section 4.09(b)(1), Section 4.09(b)(2) and Section 4.09(b)(3)) outstanding on the 2017 Amendment Effective Date;
(5) any Refinancing Indebtedness Incurred in respect of any Indebtedness described in Section 4.09(b)(3), Section 4.09(b)(4), Section 4.09(b)(5), Section 4.09(b)(6), Section 4.09(b) (8), Section 4.09(b)(15), Section 4.09(b)(16), Section 4.09(b)(20) or (21) or Incurred pursuant to Section 4.09(a);
(6) Indebtedness of the Company, a Person which becomes Permitted Affiliate Parent or a Restricted Subsidiary Incurred after the 2017 Amendment Effective Date (A) Incurred and outstanding on the date hereof on which such Restricted Subsidiary was acquired by the Company, a Permitted Affiliate Parent or any 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, any Permitted Affiliate Parent or any Restricted Subsidiary or was designated a Permitted Affiliate Parent or an Affiliate Subsidiary, (B) Incurred to provide all or a portion of the funds utilized to consummate the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or a Permitted Affiliate Parent or was otherwise acquired by the Company, a Permitted Affiliate Parent or a Restricted Subsidiary, or such Person was designated as a Permitted Affiliate Parent or an Affiliate Subsidiary or (C) Incurred and outstanding on the date on which such Restricted Subsidiary was acquired by the Company, a Permitted Affiliate Parent or 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, a Permitted Affiliate Parent or any Restricted Subsidiary (other than Indebtedness Incurred in an aggregate principal amount at any time outstanding not exceeding contemplation of the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Company, a Permitted Affiliate Parent or a Restricted Subsidiary); provided, however, that with respect to Section 4.09(b)(6)(A) and Section 4.09(b)(6)(B) only, immediately following the consummation of the acquisition of such Restricted Subsidiary by the Company, a Permitted Affiliate Parent or such other transaction, (i) $15,000,000the Company, minus any Permitted Affiliate Parent and the Restricted Subsidiaries would have been able to Incur €1.00 of additional Indebtedness pursuant to Section 4.09(a) after giving pro forma effect to the relevant acquisition or other transaction and the Incurrence of such Indebtedness pursuant to this Section 4.09(b)(6) or (ii) the sum Consolidated Net Leverage Ratio would not be greater than immediately prior to such acquisition or such other transaction;
(7) Indebtedness under Currency Agreements, Commodity Agreements and Interest Rate Agreements entered into for bona fide hedging purposes of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 Company, any Permitted Affiliate Parent or the Restricted Subsidiaries and (B) Unitymedia and its Subsidiaries and, following a Permitted Affiliate Group Designation Date, the Common Holding Company and its Subsidiaries, in each case, and not for speculative purposes (as determined conclusively in good faith by the Board of Directors or senior management of the Company or a Permitted Affiliate Parent);
(8) Indebtedness consisting of (A) mortgage financings, asset backed financings, Purchase Money Obligations or other financings, Incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation or improvement (including, without limitation, in respect of tenant improvement) of property (real or personal), plant, equipment or other assets (including, without limitation, network assets) used or useful in the business of the Company, a Permitted Affiliate Parent or a Restricted Subsidiary or (B) Indebtedness otherwise Incurred to finance the purchase, lease, rental or cost of design, development, construction, installation or improvement (including, without limitation, in respect of tenant improvement) of property (real or personal), plant, equipment or other assets (including, without limitation, network assets) used or useful in the business of the Company, a Permitted Affiliate Parent or a Restricted Subsidiary, whether through the direct purchase of assets or the Capital Stock of any Person owning such assets, and any Refinancing Indebtedness which refinances, replaces or refunds such Indebtedness, in an aggregate outstanding principal amount which, when taken together with the principal amount of indebtedness attributable to sale and leaseback transactions permitted all other Indebtedness Incurred pursuant to this Section 7.124.09(b)(8), will not exceed the greater of (i) €250.0 million and (ii) 3.0% of Total Assets at any time outstanding so long as such Indebtedness exists on the date of, or commissioning of, or contracting for, such purchase, design, development, construction, installation or improvement, or is created within 270 days thereafter;
(9) Indebtedness in respect of (a) workers’ compensation claims, casualty or liability insurance, self-insurance obligations, performance (including insurance policies), bid, indemnity, surety, judgment, appeal, completion, advance payment, customs, VAT or other tax or other guarantees or other similar bonds, instruments or obligations and completion guarantees and warranties provided by the Company, a Permitted Affiliate Parent or a Restricted Subsidiary or relating to liabilities, obligations or guarantees Incurred in the ordinary course of business (or consistent with past practice or industry practice) or in respect of any government requirement, including, but not limited to, those Incurred to secure health, safety and environmental obligations or rental obligations, (b) letters of credit, bankers’ acceptances, guarantees, or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business (or consistent with past practice or industry practice) or in respect of any government requirement, , including, but not limited to, letters of credit or similar instruments in respect of casualty or liability insurance, self-insurance, unemployment insurance, workers’ compensation obligations, health disability or other benefits, pensions-related obligations and other social security laws, (c) the financing of insurance premiums or take-or-pay obligations contained in supply agreements, in each case, in the ordinary course of business and (D) any customary cash management, cash pooling or netting or setting off arrangements in the ordinary course of business;
(10) Indebtedness Incurred constituting reimbursement obligations with respect to letters of credit issued and bank guarantees in the ordinary course of business provided to lessors of real property or otherwise in connection with the leasing of real property and letters of credit in connection with the maintenance of, or pursuant to the requirements of, environmental or other permits or licenses in respect of any government requirement, or other Indebtedness with respect to reimbursement type obligations regarding the foregoing; provided, however, that upon the drawing of such letters of credit or the Incurrence of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or Incurrence;
(11) Indebtedness arising from agreements of the Company, a Permitted Affiliate Parent or a Restricted Subsidiary providing for indemnification, guarantees or obligations in respect of earn-outs or adjustment of purchase price or similar obligations, in each case, Incurred or assumed in connection with the acquisition or disposition of any business, assets or Capital Stock of the Company, a Permitted Affiliate Parent or a Restricted Subsidiary, provided that (x) the maximum aggregate liability in respect of all such Indebtedness existed shall at no time exceed the time gross proceeds (including the fair market value of non-cash proceeds) actually received (in the case of dispositions) or paid (in the case of acquisitions) by the Company, any Permitted Affiliate Parent and the Restricted Subsidiaries in connection with such corporation became a Subsidiary and was not created in anticipation thereof disposition or acquisition, as applicable;
(12) Indebtedness arising from (i) Bank Products and (yii) immediately after giving effect to the acquisition of such corporation honoring by the Borrower no Default a bank or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations financial institution of a like nature that are incurred check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, not to exceed $5,000,000 provided, however, that in the aggregate at any time outstandingcase of this clause (ii), such Indebtedness is extinguished within thirty Business Days of Incurrence;
(h13) guarantees by the Company, a Permitted Affiliate Parent or any Restricted Subsidiary of Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into or any other obligation or liability of the ordinary course Company, a Permitted Affiliate Parent or any Restricted Subsidiary (other than of business for hedging purposes and not for speculative purposesany Indebtedness Incurred by the Company, a Permitted Affiliate Parent or Restricted Subsidiary in violation of this Section 4.09); provided, however, that if the Indebtedness being guaranteed is subordinated in right of payment to the Facilities, then such guarantee shall be subordinated substantially to the same extent as the relevant Indebtedness guaranteed;
(i14) Seller Subordinated Shareholder Loans Incurred by the Company;
(15) Indebtedness in an aggregate principal amount at of the Company, any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of Permitted Affiliate Parent or any Subsidiary Guarantor Incurred pursuant to (A) the amount guarantees of Indebtedness outstanding under clauses (c) and (f) the Existing Senior Notes issued on or before the date of this Section 7.2Agreement, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount any guarantees of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) other Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at Unitymedia or any time outstanding other Parent provided that for purposes of not to exceed $5,000,000;this clause
Appears in 1 contract
Samples: Super Senior Facilities Agreement (Liberty Global PLC)
Limitation on Indebtedness. Create, incur, assume or suffer -------------------------- to exist any Indebtedness, except:
(a) Indebtedness of the Borrower under the any Loan DocumentsParty pursuant to any Loan Document;
(b) Indebtedness (i) of the Borrower Company to a Wholly Owned Subsidiary, (ii) any Subsidiary and of a Domestic any Wholly Owned Subsidiary Guarantor to the Borrower Company or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwisesecured by Liens permitted by Section 8.3(g) in an aggregate principal amount not exceeding as to exceed $5,000,000 at any one time outstanding;
(i) Capital Lease Obligations with respect to the Borrower land and building in Xxxxxx, Italy currently owned by an affiliate of Fiat S.p.A. in an aggregate principal amount not to exceed $21,000,000 at any one time outstanding, (ii) Capital Lease Obligations (if any) with respect to the GE Sale-Leaseback, (iii) Capital Lease Obligations of GNB and its Subsidiaries outstanding on the Restatement Effective Date in an aggregate principal amount not exceeding $6,000,000, (iiv) Capital Lease Obligations permitted by Section 8.11 and (v) other Capital Lease Obligations in an aggregate principal amount (in the case of this clause (v) only) not to exceed $15,000,000 10,000,000 at any one time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notesoutstanding;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, hereof and listed on Schedule 7.2 8.2(e) and any refinancings, refundings, renewals or extensions thereof not increasing (without any increase in the principal amount thereof) which are not otherwise prohibited under this Agreement and which do not have the effect of reducing the collateral security and credit support provided on account of amounts owing under any Facility hereunder;
(f) Indebtedness of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable may be deemed to sale and leaseback transactions permitted exist pursuant to Section 7.12the Domestic Receivables Facility, provided that (x) such so long as the Domestic Receivables Facility Attributed Indebtedness existed at no time exceeds the time such corporation became a Subsidiary and was not created Domestic Receivables Maximum Commitment Amount as then in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.effect;
(g) Acquired Indebtedness may be assumed or continued by a Subsidiary of the Company acquired pursuant to, or created to effect, a Permitted Acquisition, so long as the aggregate principal amount of all such Acquired Indebtedness incurred or assumed during the term of this Agreement does not exceed $30,000,000 (without regard to the amount of any Acquired Indebtedness in connection with any of the Permitted Acquisitions set forth on Schedule 1.1E);
(h) intercompany Indebtedness among the Company and its Subsidiaries to the extent permitted by Sections 8.8(e) through (i);
(i) Indebtedness of any Wholly Owned Subsidiary to the Company or to a Wholly Owned Subsidiary Guarantor constituting deposits to secure the performance purchase price in respect of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations intercompany transfers of a like nature that are incurred goods made in the ordinary course of business, business to the extent not to exceed $5,000,000 in the aggregate at any time outstanding;
(h) constituting Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12borrowed money;
(j) Indebtedness of EHE and/or its Subsidiaries which may be deemed to exist pursuant to the European Receivables Facility, so long as the European Receivables Facility Attributed Indebtedness at no time exceeds the European Receivables Maximum Commitment Amount as then in the form of Guarantee Obligations permitted by Section 7.4; andeffect;
(k) Indebtedness not otherwise permitted guarantees made in the ordinary course of business by the foregoing clauses Company or any of its Subsidiaries of obligations of the Company or any Wholly Owned Subsidiary Guarantor;
(al) through Indebtedness of the Company evidenced by the increase in the principal amount of the Convertible Notes in connection with the accretion thereof;
(jm) short-term Indebtedness of Foreign Subsidiaries incurred for working capital purposes in an aggregate principal amount at any time outstanding of not to exceed $5,000,00030,000,000 at any one time outstanding;
(n) Guarantee Obligations of Subsidiaries of the Company incorporated in Germany provided to German banking institutions in connection with the financing of supplies purchased by any of such Subsidiaries from German suppliers; provided that (i) no such Guarantee Obligation shall have a term -------- exceeding 90 days, (ii) such Guarantee Obligations shall be unsecured and (iii) the aggregate principal amount of Guarantee Obligations which may be incurred in reliance on this paragraph (n) shall not exceed $15,000,000 at any one time outstanding;
(o) additional Indebtedness of the Company or any of its Subsidiaries in an aggregate principal amount (for the Company and all Subsidiaries) not to exceed $5,000,000 at any one time outstanding;
(p) unsecured Indebtedness of any Foreign Subsidiary in an aggregate principal amount (for all Foreign Subsidiaries) not to exceed $50,000,000 at any one time outstanding; provided, that the Net Cash Proceeds -------- thereof are applied in accordance with Section 3.5(a).
Appears in 1 contract
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower HCNA and its Subsidiaries under the Loan Documents;
(b) Indebtedness (i) of HCNA and its Subsidiaries under the Borrower to a Wholly Owned Subsidiary, (ii) of a Domestic Wholly Owned Subsidiary to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative AgentPublic Debt;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) in an aggregate principal amount not exceeding as to the Borrower HCNA and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) under the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12US Credit Agreement;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof;
(f) unsecured Indebtedness of a Person corporation which becomes a Subsidiary of HCNA after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12Closing Date, provided that (xi) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (yii) immediately after giving effect to the acquisition of such corporation by the Borrower HCNA and its Subsidiaries, no Default or Event of Default shall have occurred and be continuing;
(e) Indebtedness of HCNA to any of its Subsidiaries and of any Subsidiary of HCNA to HCNA or any other Subsidiary; provided that, after giving effect to the incurrence of such Indebtedness, the Included Investments do not exceed the Permitted Investment Amount;
(f) Indebtedness of HCNA and its Subsidiaries in respect of Financing Leases (in addition to those permitted pursuant to subsection 10.2(g)) and in respect of all or a part of the purchase price of property, plant and equipment in the ordinary course of business having aggregate imputed principal amounts and aggregate principal amounts not to exceed as to HCNA and its Subsidiaries US$28,500,000 (or the Equivalent Amount thereof) in the aggregate at any time outstanding (of which not more than US$5,000,000 (or the Equivalent Amount thereof) shall be on account of the Sifto Group);
(g) Indebtedness (including, without limitation, in respect of Financing Leases) in existence on the Closing Date and listed on Schedule V and any refinancings, refundings, renewals or extensions thereof, provided that the terms applicable to such refinanced, renewed or extended Indebtedness, as the case may be, are no more burdensome to the applicable borrower thereof not increasing than the principal amount thereof.
(g) Indebtedness constituting deposits terms applicable to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstandingoriginal Indebtedness;
(h) additional Indebtedness under Interest Rate Protection Agreements of HCNA and Hedge Agreements entered into its Subsidiaries not exceeding US$2,000,000 (or the ordinary course of business for hedging purposes and not for speculative purposes;
(iEquivalent Amount thereof) Seller Indebtedness in an aggregate principal amount at any one time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;outstanding.
Appears in 1 contract
Samples: Credit and Guarantee Agreement (Harris Chemical North America Inc)
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower under the Loan Documentsthis Agreement;
(b) Indebtedness (i) of the Borrower to a Wholly Owned Subsidiary, (ii) any Restricted Subsidiary and of a Domestic Wholly Owned any Restricted Subsidiary to the Borrower or any other Restricted Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower or and any Subsidiary of its Restricted Subsidiaries incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) not exceeding $5,000,000 in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) $15,000,000 at any one time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing (provided that the principal amount of such Indebtedness shall at no time exceed 100% of the original acquisition cost of such assets plus any costs associated with the financing or refinancing thereof);
(fd) Indebtedness outstanding on the date hereof and listed on Schedule 6.2 and any refinancings, refundings, renewals or extensions thereof (provided that the principal amount of such Indebtedness is not increased by an amount greater than costs associated with any such refinancing, refundings, renewals or extensions);
(e) Indebtedness of a Person which becomes a Restricted Subsidiary after the date hereof in an aggregate principal amount at and any time outstanding not exceeding (i) $15,000,000refinancings, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12refundings, renewals or extensions thereof, provided that (xi) such Indebtedness existed at the time such corporation Person became a Restricted Subsidiary (or, if later, at the time it acquired the assets of a business pursuant to subsection 6.8(c)) and was not created in anticipation thereof and (yii) immediately after giving effect to the acquisition of such corporation Person by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.;
(f) Permitted Additional Indebtedness; and
(g) additional Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred not exceeding $10,000,000 in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount at any one time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;outstanding.
Appears in 1 contract
Limitation on Indebtedness. CreateThe Company and each Guarantor shall not, and shall not permit any of the Restricted Subsidiaries to, directly or indirectly, create, incur, assume or assume, suffer to exist exist, or otherwise become or remain liable with respect to, any Indebtedness, except:except (collectively, “Permitted Indebtedness”):
(a) Indebtedness of the Borrower under incurred pursuant to the Loan Documents;
(b) Indebtedness incurred pursuant to (i) of the Borrower to a Wholly Owned Subsidiary, (ii) of a Domestic Wholly Owned Subsidiary to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) 2017 Senior Notes Indenture in an aggregate principal amount not exceeding as to the Borrower exceed $150,000,000 and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the 2019 Senior Notes Indenture in an aggregate principal amount of Indebtedness outstanding under clauses not to exceed $500,000,000;
(fc) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12[Reserved];
(d) Indebtedness incurred in connection with the financing of the Borrower and Ellwood pipeline expansion not to exceed $20,000,000, provided, that (i) the Company shall have furnished to the Administrative Agent not less than seven Business Days prior written notice of its Subsidiaries under intent to incur such Indebtedness, the Convertible Subordinated Debentures amount thereof, and the 1997 Convertible Subordinated Notesanticipated closing date, together with copies of drafts of the definitive documents; and (ii) such Indebtedness may be secured only by a lien on the assets of Ellwood and shall otherwise be Non-Recourse Obligations;
(e) Indebtedness outstanding on in the date hereof, form of obligations for the deferred purchase price of property or services incurred hereafter pursuant to existing commitments in the ordinary course of business which are not yet due and payable or agreements, and, are being contested in each case, listed on Schedule 7.2 good faith by appropriate proceedings and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereoffor which adequate reserves in accordance with GAAP have been established;
(f) Indebtedness secured by the Liens permitted under paragraph (j) of a Person which becomes a Subsidiary after the date hereof Section 8.1 in an aggregate principal amount not to exceed $10,000,000 at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.time;
(g) Indebtedness constituting deposits to secure owing in connection with the performance financing of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred insurance premiums in the ordinary course of business; and
(h) in addition to the Indebtedness otherwise permitted under this Section 8.5, Indebtedness of the Loan Parties not to exceed $5,000,000 15,000,000 in the aggregate at any time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;.
Appears in 1 contract
Samples: Credit Agreement (Venoco, Inc.)
Limitation on Indebtedness. CreateThe Obligors shall not, and shall not permit any of their Subsidiaries to, create, incur, assume assume, guarantee or suffer be or remain liable, contingently or otherwise, with respect to exist any Indebtedness other than the following (each, a “Permitted Indebtedness, except:”):
(a) Indebtedness of the Borrower under the Loan DocumentsSenior Indebtedness;
(b) Indebtedness (i) endorsements for collection, deposit or negotiation and warranties of the Borrower to a Wholly Owned Subsidiary, (ii) of a Domestic Wholly Owned Subsidiary to the Borrower products or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, andservices, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof;
(f) Indebtedness of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are case incurred in the ordinary course of business;
(c) Indebtedness incurred in connection with the acquisition after the date hereof of any real or personal property, including software, by the Obligors or any of their Subsidiaries or under any Capital Lease, provided that the aggregate principal amount of such Indebtedness incurred by the Obligors and their Subsidiaries during the first two Fiscal Years after the Closing Date shall not to exceed exceed, without duplication, $2,500,000 in the aggregate principal amount at any time and during any other Fiscal Year shall not exceed, without duplication $5,000,000 in the aggregate principal amount at any time outstandingtime;
(hd) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements in respect of any interest rate protection arrangements entered into in the ordinary course of business for hedging purposes of the Obligors and not for speculative purposes;
(ie) Seller Subordinated Debt;
(f) Indebtedness existing on the date hereof and listed and described on the Disclosure Schedule;
(g) Indebtedness of any Subsidiary of any Obligor to any Obligor or any of its other Subsidiaries and Indebtedness of any Obligor to any other Obligor or any Subsidiary of any Obligor, not to exceed $2,000,000 in an the aggregate principal amount at any time outstanding time;
(h) Indebtedness with respect to letters of credit from any bank in an amount not exceeding to exceed $500,000 at any time;
(i) Any other Indebtedness (secured or unsecured) not exceeding $15,000,000 minus (ii) 100,000 in the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the aggregate principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12at any time;
(j) Indebtedness with respect to surety bonds and similar obligations arising in the form ordinary course of Guarantee Obligations permitted by Section 7.4; andbusiness;
(k) Indebtedness not otherwise permitted by that constitutes a Permitted Investment;
(1) Indebtedness to trade creditors incurred in the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding ordinary course of not to exceed $5,000,000business;
Appears in 1 contract
Samples: Securities Purchase Agreement (Cornerstone OnDemand Inc)
Limitation on Indebtedness. CreateThe Borrower will not, and will not suffer or permit any of its Subsidiaries to, create, incur, assume or issue, assume, suffer to exist exist, or otherwise become or remain directly or indirectly liable with respect to, any Indebtedness, except:
(a) Indebtedness of the Borrower under the Loan Documents;
(b) Indebtedness (i) of the Borrower to a Wholly Owned Subsidiary, (ii) of a Domestic Wholly Owned Subsidiary to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding existing on the date of this Agreement Effective Date and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, listed described on Schedule 7.2 7.05(a) and any refinancings, refundings, renewals or extensions thereof not increasing (without increasing, or shortening the maturity of, the principal amount of such Indebtedness);
(b) Indebtedness incurred pursuant to any Loan Document;
(c) Indebtedness of any Credit Party owing to the Borrower or any Wholly-Owned Subsidiary of the Borrower, provided that any such Indebtedness (i) is permitted to be advanced by the Borrower or such Wholly-Owned Subsidiary pursuant to the provisions of Section 7.10 and (ii) is not subordinated to any other Indebtedness of the obligor (other than the Obligations);
(d) so long as no Event of Default exists both before and after giving effect to the incurrence thereof, Indebtedness of the Borrower and/or its Subsidiaries secured by Liens permitted by Section 7.02(h);
(e) so long as no Event of Default exists both before and after giving effect to the incurrence thereof, (i) Permitted Borrower Unsecured Indebtedness in an aggregate principal amount not to exceed $15,000,000 outstanding at any time, such maximum amount to be reduced by the aggregate principal amount of “Permitted Borrower Unsecured Indebtedness” (as such term is defined in the Nexstar Credit Agreement) of any Nexstar Entity outstanding at any time, and (ii) Permitted Seller Subordinated Indebtedness, in an aggregate principal amount not to exceed $35,000,000 outstanding at any time, such maximum permitted amount to be reduced by the aggregate principal amount of “Permitted Seller Subordinated Indebtedness” (as such term is defined in the Nexstar Credit Agreement) of any Nexstar Entity outstanding at such time, provided that prior to the incurrence of any such Indebtedness, the Borrower shall have delivered to the Administrative Agent (x) a certificate of the Borrower executed on its behalf by a Responsible Officer of the Borrower certifying (A) compliance with each of the financial covenants contained in Section 7.09 of the Nexstar Credit Agreement, based on financial projections of the Mission Entities, the Nexstar Borrower and its Subsidiaries attached to such certificate which have been prepared on a Pro Forma Basis for the period from the proposed date of the incurrence of such Indebtedness to the Maturity Date of the latest to mature of the Loans and (B) that no Default exists or will exist both before and after giving effect to the incurrence of such Indebtedness;
(f) Indebtedness so long as no Event of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) Default exists both before and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition incurrence thereof, Interest Rate Protection Agreements required hereunder or in respect of Indebtedness otherwise permitted hereby so long as such corporation by agreements are not entered into for speculative purposes and the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.is in compliance with Section 6.15 after giving effect thereto;
(g) Capital Lease Obligations and other Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than Indebtedness for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations ) of a like nature that are incurred the Borrower and/or its Subsidiaries in the ordinary course of business, an amount not to exceed $5,000,000 in the aggregate for the Borrower and its Subsidiaries at any time outstanding;
(h, such maximum amount to be reduced by the aggregate principal amount of Indebtedness of any Nexstar Entity permitted under Section 7.05(g) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into of the ordinary course of business for hedging purposes and not for speculative purposes;Nexstar Credit Agreement outstanding at any time; and
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding Guaranty Obligations of the Mission Entities (iother than the Borrower) $15,000,000 minus with respect to Permitted Nexstar Subordinated Indebtedness, (ii) subordinated Guaranty Obligations of the sum Mission Entities (other than the Borrower) with respect to Permitted Seller Subordinated Indebtedness incurred by the Borrower and subordinated Guaranty Obligations of the Mission Entities with respect to Permitted Seller Subordinated Indebtedness (A) as that term is defined in the amount of Indebtedness outstanding under clauses (c) Nexstar Credit Agreement), and (fiii) Guaranty Obligations of this Section 7.2, the Mission Entities (other than the direct and any refinancings, refundings, renewals indirect Subsidiaries of the Borrower or extensions thereof not increasing the principal amount thereof Nexstar Borrower) with respect to Permitted Borrower Unsecured Indebtedness and Guaranty Obligations of the Mission Entities (Bother than the direct and indirect Subsidiaries of the Borrower or the Nexstar Borrower) the amount of indebtedness attributable with respect to sale and leaseback transactions permitted pursuant to Section 7.12;
Permitted Borrower Unsecured Indebtedness (j) Indebtedness as that term is defined in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;Nexstar Credit Agreement).
Appears in 1 contract
Limitation on Indebtedness. Create, incur, assume or suffer to -------------------------- exist any Indebtedness, except:
(a) Indebtedness of the Borrower under the Loan Documentsthis Agreement;
(b) Indebtedness (i) of the Borrower to a Wholly Owned Subsidiary, (ii) the Operating Subsidiary and of a Domestic Wholly Owned the Operating Subsidiary to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower or any and the Operating Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) the Operating Subsidiary $15,000,000 5,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12outstanding;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof;
(f) Indebtedness of a Person corporation which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12hereof, provided that (xi) such Indebtedness indebtedness existed at the time -------- such corporation became a Subsidiary and was not created in anticipation thereof and (yii) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof ;
(e) additional Indebtedness of the Borrower not increasing the exceeding $5,000,000 in aggregate principal amount thereof.at any one time outstanding;
(f) Indebtedness of the Borrower in respect of (x) not more than $85,000,000 principal amount of Subordinated Debt issued on the Closing Date and (y) the NOL Note;
(g) the Indebtedness constituting deposits to secure of the performance of bids, trade contracts (other than for borrowed moneyBorrower and its Subsidiaries outstanding on the Closing Date and reflected on Schedule 7.2(g), leasesand refundings or refinancings thereof, statutory obligations, surety and appeal bonds and performance bonds and other obligations provided that no such refunding or refinancing shall -------- shorten the maturity or increase the principal amount of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstandingoriginal Indebtedness;
(h) Indebtedness under in respect of the Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposesrequired by subsection 6.11;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions Guarantee Obligations permitted pursuant to Section 7.12by subsection 7.4;
(j) Indebtedness to any insurance company of the Borrower or any Subsidiary in connection with insurance premiums payable in the form of Guarantee Obligations permitted by Section 7.4; andfollowing twelve (12) months;
(k) Indebtedness not otherwise permitted secured by Permitted Liens; and
(l) Indebtedness incurred or assumed pursuant to the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;IRB Related Transactions.
Appears in 1 contract
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower under the any Loan DocumentsParty pursuant to any Loan Document;
(b) Indebtedness (i) of the Parent Borrower to a Wholly Owned Subsidiary, (ii) any Subsidiary and of a Domestic Wholly any Wholly-Owned Subsidiary Guarantor to the Parent Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness secured by Liens permitted by Section 7.3(g); provided that the Parent Borrower shall be in compliance, on a pro forma basis after giving effect to the incurrence of such Indebtedness, with the financial covenants contained in Section 7.1 recomputed as at the last day of the most recently ended fiscal quarter of the Parent Borrower or any Subsidiary and its Subsidiaries for which financial statements are available as if such Indebtedness had been incurred to finance on the acquisition or construction first day of fixed or capital assets each relevant period for testing such compliance;
(whether pursuant to a loan, a Financing d) Capital Lease or otherwise) Obligations in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) exceed $15,000,000 40,000,000 at any one time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notesoutstanding;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, Closing Date and listed on Schedule 7.2 7.2(e) and any refinancings, refundings, renewals or extensions thereof not increasing (without any increase in the principal amount thereof);
(f) guarantees made in the ordinary course of business by the Parent Borrower or any of its Subsidiaries of obligations of any Wholly-Owned Subsidiary Guarantor;
(g) Indebtedness of a Person which becomes a Subsidiary after the date hereof Parent Borrower or its Subsidiaries on account of industrial revenue bonds in an aggregate principal amount not to exceed $40,000,000 at any one time outstanding;
(h) guarantees made in the ordinary course of business by the Parent Borrower or any of its Subsidiaries of lease obligations of their customers in respect of equipment sold by the Parent Borrower or any of its Subsidiaries to a third party and then leased to such customer in an aggregate amount outstanding at any time outstanding not exceeding to exceed $30,000,000;
(i) Indebtedness in respect of letters of credit (not otherwise permitted under this Section 7.2) outstanding in the ordinary course of business in an aggregate face amount not to exceed $15,000,000, minus 50,000,000;
(j) Indebtedness of (i) any Subsidiary that is not a Loan Party to any other Subsidiary that is not a Loan Party and (ii) the sum any Subsidiary Guarantor to any Subsidiary that is not a Loan Party;
(k) Indebtedness of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a any Foreign Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect or Foreign Subsidiary Holdco to the acquisition of such corporation by the Parent Borrower or any other Subsidiary (so long as no Default or Event of Default shall have occurred and be continuingcontinuing at the time of the incurrence of such Indebtedness), provided that (x) the requirements of Section 6.9 are satisfied and any refinancings, refundings, renewals or extensions thereof not increasing (y) the aggregate principal amount thereof.
(g) of such Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;
outstanding shall not exceed the greater of $100,000,000 or 10% of the Consolidated Total Tangible Assets (hmeasured on the date of incurrence of the most recent of such Indebtedness), and provided, further, that any Indebtedness permitted by this Section 7.2(k) Indebtedness under Interest Rate Protection Agreements shall be evidenced by a note or similar instrument and Hedge Agreements entered into pledged in accordance with Section 6.9 and the ordinary course of business for hedging purposes Guarantee and not for speculative purposesCollateral Agreement;
(i) Seller Permitted Unsecured Indebtedness; provided that (x) at the time of, and after giving effect to, the incurrence of such Indebtedness, no Default or Event of Default shall have occurred and be continuing and (y) the Parent Borrower shall be in compliance, on a pro forma basis after giving effect to the incurrence of such Indebtedness, with the financial covenants contained in Section 7.1(a) and (b), in each case recomputed as at the last day of the most recently ended fiscal quarter of the Parent Borrower and its Subsidiaries for which financial statements are available as if such Indebtedness had been incurred on the first day of such period and (ii) any guarantee by any Subsidiary in respect of any Permitted Unsecured Indebtedness; provided that (x) no Subsidiary that is not a Loan Party shall guarantee any Permitted Unsecured Indebtedness and (y) any such guarantee in respect of Permitted Unsecured Indebtedness shall be unsecured;
(m) Indebtedness incurred in connection with or in substitution or replacement of a Receivables Transfer Program in an aggregate principal amount at any time outstanding not exceeding to exceed $100,000,000;
(i) $15,000,000 minus Permitted Subordinated Indebtedness; provided that the Parent Borrower shall be in compliance, on a pro forma basis after giving effect to the incurrence of such Indebtedness, with the financial covenant contained in Section 7.1(b), recomputed on a pro forma basis as at the last day of the most recently ended fiscal quarter of the Parent Borrower and its Subsidiaries for which financial statements are available as if such Indebtedness had been incurred on the first day of such period and (ii) the sum any guarantee by any Subsidiary in respect of any Permitted Subordinated Indebtedness; provided that (Ax) the amount of no Subsidiary that is not a Loan Party shall guarantee any Permitted Subordinated Indebtedness outstanding under clauses (c) and (fy) any such guarantee shall be subordinated to the prior payment in full of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) Obligations on the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in same basis as the form of Guarantee Obligations permitted by Section 7.4related Permitted Subordinated Indebtedness; and
(ko) unsecured Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) this Section 7.2 in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;50,000,000.
Appears in 1 contract
Samples: Credit Agreement (Conmed Corp)
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower under the Loan Documentsthis Agreement or under any Hedging Agreement;
(b) Indebtedness (i) of the Borrower to a Wholly Owned SubsidiaryParent, (ii) of a Domestic Wholly Owned Subsidiary to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary (including Financing Leases) incurred to finance the purchase price of equipment, fixtures and other similar property of the Parent, the Borrower or such Subsidiary in an aggregate principal amount at any time outstanding not to exceed the Dollar Equivalent of $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount 2,000,000 at any one time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agentoutstanding;
(c) unsecured Indebtedness of the Borrower or any Approved Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to that is a loan, a Financing Lease or otherwise) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof;
(f) Indebtedness of a Person which becomes a Domestic Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, business and aggregating not to exceed more than the Dollar Equivalent of $5,000,000 in the aggregate 1,000,000 at any time outstanding;
(d) unsecured Indebtedness (i) in respect of lines of credit from commercial banks advised in writing to the Administrative Agent and available to the Foreign Subsidiaries that are Approved Subsidiaries and aggregating not more than the Dollar Equivalent of $3,000,000 at any time outstanding and (ii) of any Foreign Subsidiary that is not an Approved Subsidiary and aggregating not more than the Dollar Equivalent of $5,000,000 at any time outstanding;
(e) unsecured Indebtedness of (i) any Subsidiary owed to the Borrower or any other Subsidiary or (ii) the Borrower owed to any Subsidiary; PROVIDED that the sum of loans, advances and other investments under Section 6.9(g) (to the extent not duplicative) and the aggregate principal amount of all such unsecured Indebtedness shall not exceed the Dollar Equivalent of (A) $5,000,000 in the case of any Subsidiary that is not an Approved Subsidiary, and (B) $10,000,000 in the aggregate, in the case of all Subsidiaries that are not Approved Subsidiaries, in each case, at any time outstanding;
(f) Existing Indebtedness;
(g) Permitted High Yield Securities or Refinancing Securities;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposesSubordinated Guarantees;
(i) Seller Non-Recourse Indebtedness in an aggregate principal amount not to exceed the Dollar Equivalent of $10,000,000 at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;outstanding; and.
(j) Indebtedness in of Fluent UK Holdings, Ltd. owed to the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) Borrower in an aggregate principal amount at any time outstanding of not to exceed the Dollar Equivalent of $5,000,000;8,000,000; PROVIDED that, subject to Section 956 of the Code, any security for such Indebtedness shall be assigned to the Administrative Agent, for the benefit of the Lenders.
Appears in 1 contract
Limitation on Indebtedness. CreateThe Company and each Guarantor shall not, and shall not permit any of the Restricted Subsidiaries to, directly or indirectly, create, incur, assume or assume, suffer to exist exist, or otherwise become or remain liable with respect to, any Indebtedness, except:except (collectively, “Permitted Indebtedness”):
(a) Indebtedness of the Borrower under incurred pursuant to the Loan Documents;
(b) Indebtedness incurred pursuant to (i) of the Borrower to a Wholly Owned Subsidiary, (ii) of a Domestic Wholly Owned Subsidiary to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary 2017 Senior Notes Indenture in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of 150,000,000, (ii) the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary 2019 Senior Notes Indenture in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses 500,000,000 and (iii) provided that the terms and provisions of the notes (ivthe “Exchange Notes”) hereof, if to issued in exchange for all or a portion of the Borrower Senior Notes and of the indenture (the “Exchange Notes Indenture”) governing such Exchange Notes are (x) on the same terms and provisions as the Senior Notes or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably provisions more favorable to the applicable Loan Parties or (y) otherwise satisfactory to the Administrative Agent, the Exchange Notes Indenture;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) the First Lien Credit Agreement in an aggregate principal amount not exceeding as to exceed the Borrower and its Subsidiaries greater of (i) $15,000,000 at any time outstanding minus the Borrowing Base and (ii) $225,000,000, but not to exceed in any event the amount lesser of (A) 20% of Adjusted Consolidated Net Tangible Assets on the date of incurrence of such Indebtedness outstanding under clauses (f) and (iB) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12$500,000,000;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notesincurred pursuant to Qualifying Derivative Contracts;
(e) Indebtedness outstanding on in the date hereof, form of obligations for the deferred purchase price of property or services incurred hereafter pursuant to existing commitments in the ordinary course of business which are not yet due and payable or agreements, and, are being contested in each case, listed on Schedule 7.2 good faith by appropriate proceedings and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereoffor which adequate reserves in accordance with GAAP have been established;
(f) Indebtedness secured by the Liens permitted under paragraph (j) of a Person which becomes a Subsidiary after the date hereof Section 8.1 in an aggregate principal amount not to exceed $15,000,000 at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.time;
(g) Indebtedness constituting deposits to secure owing in connection with the performance financing of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred insurance premiums in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;
(h) Indebtedness not otherwise permitted under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and this Section 8.5 in an aggregate amount not for speculative purposes;to exceed $7,500,000 at any time; and
(i) Seller in addition to the Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding otherwise permitted under clauses (c) and (f) of this Section 7.28.5, additional unsecured Indebtedness of the Loan Parties; provided, that after giving effect thereto, the Company shall be in pro forma compliance with Sections 8.12, 8.13 and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;8.14.
Appears in 1 contract
Limitation on Indebtedness. Create, issue, incur, assume assume, become liable in respect of or suffer to exist any Indebtedness, exceptexist:
(a) any Indebtedness of pursuant to any Receivables Transaction, except for Indebtedness pursuant to all Receivables Transactions that is (i) non-recourse with respect to the Borrower under the Loan Documents;and its Subsidiaries (other than any Receivables Subsidiary) and (ii) in an aggregate principal amount at any time outstanding not exceeding 15% of Consolidated Total Assets at such time; or
(b) any Indebtedness of any of the Subsidiaries other than (i) Indebtedness of the Borrower any Receivables Subsidiary pursuant to a Wholly Owned Subsidiaryany Receivables Transaction permitted under subsection 8.3(a), (ii) any Indebtedness of any Subsidiary as a Domestic Wholly Owned guarantor under or pursuant to any of those certain Note Purchase Agreements, so long as such Subsidiaries are Guarantors, (iii) any Indebtedness of any Subsidiary existing on the Closing Date and set forth on Schedule 8.3 and any refinancing thereof; provided, that the then outstanding principal amount thereof is not increased and the weighted average maturity thereof is not decreased, (iv) any Indebtedness of any Subsidiary which is a Guarantor, (v) any Indebtedness of any Subsidiary owed to the Borrower or any other Subsidiary, (iiivi) any Indebtedness arising in respect of Servicios to the Borrower capital leases or purchase money obligations incurred in accordance with subsection 8.2(h), (vii) any Subsidiary other Indebtedness of Subsidiaries in an aggregate principal amount at any time outstanding not to exceed the greater of (x) $5,000,000 in excess 200,000,000400,000,000 or (y) 10% of Consolidated Total Assets at the amount of time such Indebtedness outstanding on the date of this Agreement and is incurred, (ivviii) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(cA) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower Xxxxxx Parent and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, Xxxxxx Credit Agreement in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing the a principal amount thereof;
(f) Indebtedness of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount not to exceed $330,000,000 at any time outstanding not exceeding (i) $15,000,000time, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount Permitted Xxxxxx Parent Refinancing Indebtedness in respect thereof, (ix) Indebtedness of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a any Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event in respect of Default shall have occurred netting services, automatic clearinghouse arrangements, overdraft protections and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred similar arrangements in each case in connection with deposit accounts in the ordinary course of business, and (x) any Guarantee Obligation of the Borrower in respect of Indebtedness incurred by any Subsidiary under clause (ix) hereof up to an aggregate principal amount not to exceed $5,000,000 in the aggregate 75,000,000150,000,000 at any time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;.
Appears in 1 contract
Samples: Credit Agreement (Henry Schein Inc)
Limitation on Indebtedness. CreateThe Company will not, and will -------------------------- not permit any Subsidiary to, create, incur, assume or suffer to exist guarantee or in any other manner become directly or indirectly liable for the payment of, any Indebtedness other than the Permitted Indebtedness, except:
(a) unless at the time of such event and after giving effect thereto the aggregate amount of all outstanding Indebtedness of the Borrower under Company and its Subsidiaries, including all Permitted Indebtedness other than the Loan Documents;
(b) Indebtedness (i) Notes, does not exceed 80% of the Borrower Company's Net Amount of Accounts (the "Borrowing Base") as set forth in the most recent statement of Net Amount of Accounts delivered pursuant to a Wholly Owned SubsidiarySection 8.1(d)."
4. Section 15.1 of the Agreement is hereby amended by deleting the definition of "Consolidated Tangible Net Worth" in its entirety and substituting the following therefor: "Consolidated Tangible Net Worth. With respect to any Person ------------------------------- means, as of any date, (ii1) the net book value (after deducting related depreciation, obsolescence, amortization, valuation and other proper reserves) at which the Adjusted Tangible Assets of the Company and all Subsidiaries would be shown on a Domestic Wholly Owned Subsidiary to consolidated balance sheet at such date, but excluding any amount on account of write-ups of assets after May 1, 1989, minus (2) the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of which the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary liabilities, (other than Serviciosthe Notes, deferred taxes, capital stock and surplus) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding would be shown on such balance sheet and including as liabilities all reserves for contingencies and other potential liabilities. For purposes of this definition, "Adjusted Tangible Assets" means all assets except (with respect to all such Foreign Subsidiaries of the Borrower1) not to exceed $1,000,000net capitalized software; (2) Intellectual Property Rights, provided that such Indebtedness referred to in clauses (iii) franchises, goodwill and other similar intangibles, and (iv3) hereofaccounts, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof;
(f) Indebtedness of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;receivables due from Affiliates."
Appears in 1 contract
Samples: Note and Warrant Purchase Agreement (Information Management Associates Inc)
Limitation on Indebtedness. CreateNo Credit Party shall, and no Credit Party shall suffer or permit any of its Subsidiaries to, create, incur, assume assume, permit to exist, or suffer to exist otherwise become or remain directly or indirectly liable with respect to, any Indebtedness, except:
(a) Indebtedness of the Borrower under the Loan DocumentsObligations;
(b) Indebtedness consisting of Contingent Obligations described in clause (ia) of the Borrower definition thereof and permitted pursuant to a Wholly Owned Subsidiary, (ii) of a Domestic Wholly Owned Subsidiary to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative AgentSection 5.9;
(c) Indebtedness of existing on the Borrower or any Subsidiary incurred to finance Closing Date and set forth in Schedule 5.5 (which shall include the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) Canadian Subsidiary’s Indebtedness under the Canadian Facility in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the amount in excess of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12CDN$2,800,000), including Permitted Refinancings thereof;
(d) Indebtedness consisting of Capital Lease Obligations or purchase money Indebtedness secured by Liens permitted by subsection 5.1(h) and Permitted Refinancings thereof not to exceed in the aggregate at any time outstanding $11,000,000 (or $15,000,000 if, within 120 days from the Closing Date the Borrower shall have (i) entered into a new financing arrangement with DLL on terms reasonably satisfactory to Agent (as may be amended, restated, supplemented or otherwise modified from time to time to the extent permitted hereunder, the “New DLL Facility”), and (ii) delivered copies of the Borrower and its Subsidiaries under loan documents governing the Convertible Subordinated Debentures and New DLL Facility to the 1997 Convertible Subordinated NotesAgent);
(e) unsecured intercompany Indebtedness outstanding on the date hereof, or incurred hereafter permitted pursuant to existing commitments or agreements, and, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereofsubsection 5.4(b);
(f) other unsecured Indebtedness owing to Persons that are not Affiliates of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding Credit Parties not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 500,000 in the aggregate at any time outstanding;
(hg) Subordinated Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and Holdings owing to Essex in an aggregate outstanding amount not for speculative purposes;
to exceed $5,000,000 at any time; provided, that (i) Seller Indebtedness in an aggregate principal amount the Agent shall have received reasonable advance notice of the incurrence and/or assumption of such Subordinated Indebtedness, including a reasonably detailed description thereof, at any time outstanding not exceeding least 15 days prior to such incurrence and/or assumption (ior such later date as may be agreed by the Agent) $15,000,000 minus and on or prior to the date of such incurrence and/or assumption, the Agent shall have received copies of the proposed promissory note and related Contractual Obligations and other documents and information requested by the Agent, (ii) the sum of such Subordinated Indebtedness shall be unsecured and shall have no scheduled principal payments, prepayments, redemptions or interest payments (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable provided that such interest shall be permitted to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness be paid in kind in the form of Guarantee Obligations permitted by Section 7.4additional Subordinated Indebtedness), prior to the date which is 12 months after the date set forth in clause (a) of the definition of Revolving Termination Date and is otherwise on terms satisfactory to the Agent in its sole discretion, and (iii) as of the date of incurrence and/or assumption of such Subordinated Indebtedness and after giving effect to all transactions to occur on such date no Default or Event of Default is continuing; and
(kh) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) arising under employee purchasing credit card arrangements with Xxxxx Fargo Bank, National Association in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;50,000 at any one time outstanding.
Appears in 1 contract
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower under the any Loan DocumentsParty pursuant to any Loan Document;
(b) Indebtedness (i) of any of Holdings, SBA I, the Borrower to or a Wholly Owned Subsidiary, (ii) of a Domestic Wholly Owned Subsidiary Guarantor to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative AgentLoan Party;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loanincluding, a Financing without limitation, Capital Lease or otherwiseObligations) secured by Liens permitted by Section 7.3(g) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) exceed $15,000,000 5,000,000 at any one time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12outstanding;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, hereof and listed on Schedule 7.2 7.2(d) and any refinancings, refundings, renewals or extensions thereof not increasing (without any increase in the principal amount thereof or any shortening of the maturity of any principal amount thereof);
(e) Guarantee Obligations made in the ordinary course of business by the Borrower or any of its Subsidiaries of obligations of the Borrower or any Subsidiary Guarantor;
(f) unsecured Indebtedness owing to sellers of Qualified Tower Portfolios and constituting a Person which becomes portion of the consideration for the acquisition of such Qualified Tower Portfolios by the Borrower or a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000Guarantor, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that so long as (x) such Indebtedness existed at (excluding any deferred purchase consideration which is contingent) is subordinated to the time such corporation became a Subsidiary and was not created in anticipation thereof and Obligations on substantially the terms of Schedule 7.2(f), (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the aggregate principal amount thereof.of all Indebtedness under this Section 7.2(f) at any one time outstanding shall not exceed $15,000,000 (including any deferred purchase consideration which is contingent) and (z) the aggregate amount of all deferred purchase consideration which is contingent under this Section 7.2(f) at any one time outstanding shall not exceed $10,000,000; and
(g) Indebtedness constituting deposits owed to credit card companies which are used to pay operating expenses associated with Towers and the Services Business and letters of credit to secure such Indebtedness in an aggregate amount not exceeding $500,000 at any one time outstanding; provided, however, that none of the performance Subsidiaries owning, leasing, operating or managing Towers may incur any of bids, trade contracts the Indebtedness permitted under clause (e) above (other than for borrowed money), leases, statutory obligations, pursuant to reimbursement obligations in respect of removal bond surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred arrangements in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and or clause (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and above (B) the amount of indebtedness attributable to sale and leaseback transactions permitted other than pursuant to Section 7.12;
(j) Indebtedness any deferred purchase consideration in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;earn-outs which is contingent).
Appears in 1 contract
Limitation on Indebtedness. Create, At any time incur, assume create, assume, or suffer to exist any Indebtedness, Indebtedness except:
(a) Indebtedness of the Borrower amounts outstanding under the Loan Documents;
(b) purchase money Indebtedness (i) on equipment purchased in the ordinary course of the Borrower to a Wholly Owned Subsidiarybusiness and Capital Lease Obligations not exceeding, (ii) of a Domestic Wholly Owned Subsidiary to the Borrower together with any purchase money Indebtedness or any other SubsidiaryCapital Lease Obligations listed on Schedule 6.2, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed of $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent750,000;
(c) Indebtedness existing as of the Borrower date hereof described on Schedule 6.2 (including, except with respect to seller notes, any extensions or any Subsidiary incurred to finance the acquisition renewals or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) refinancings thereof provided there is no increase in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and thereof or other significant change in the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12terms thereof);
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness in an aggregate amount not to exceed $250,000 at any one time outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof;
(f) Indebtedness of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12Closing Date, provided that (xi) such Indebtedness existed at the time such corporation Person became a Subsidiary and was not created in anticipation thereof and of the acquisition, (yii) immediately after giving effect to the acquisition of such corporation Person by the Borrower or a Subsidiary, no Default or Event of Default shall have occurred and be continuing, continuing and any refinancings, refundings, renewals or extensions thereof not increasing (iii) the Borrower has complied with Section 5.15 hereof;
(e) unsecured Indebtedness of the Borrower and its Subsidiaries in an aggregate principal amount thereof.not to exceed $250,000 at any time outstanding the proceeds of which are to be used for the Borrower’s and its Subsidiaries’ general corporate purposes;
(f) Subordinated Debt, including earnouts and seller notes in connection with Permitted Acquisitions which qualify as Subordinated Debt;
(g) subject to Section 6.6, Indebtedness constituting deposits owed to secure the performance of bids, trade contracts a Loan Party by another Loan Party;
(other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are h) Guaranty Obligations incurred in the ordinary course of businessbusiness by the Borrower or any of its Subsidiaries of obligations of any other Loan Party, not to exceed $5,000,000 in including Indebtedness of the aggregate at Borrower or any time outstanding;
of its Subsidiaries permitted under this Section 6.2 (hexcept (x) as regards Indebtedness under Interest Rate Protection Agreements clause (c) above, only if and Hedge Agreements entered into to the ordinary course of business for hedging purposes extent such Indebtedness was guaranteed on the Closing Date and not for speculative purposes(y) Subordinated Debt under clause (f) above);
(i) The ASG Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) Notes, provided that the sum terms of (A) such Notes, including the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2subordination provisions thereof, and any refinancings, refundings, renewals or extensions thereof not increasing are reasonably acceptable to the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;Administrative Agent; and
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not relating to exceed $5,000,000;Hedge Agreements entered into with Lenders for non-speculative purposes.
Appears in 1 contract
Samples: Credit Agreement (Clearpoint Business Resources, Inc)
Limitation on Indebtedness. Create, incur, assume or suffer to -------------------------- exist any Indebtedness, except:
(a) Indebtedness of the Borrower under the any Loan DocumentsParty pursuant to any Loan Document;
(b) Indebtedness (i) of the Borrower to a Wholly Owned Subsidiary, (ii) any Subsidiary Guarantor and of a Domestic any Wholly Owned Subsidiary Guarantor to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative AgentSPC);
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets other than any SPC (whether pursuant to a loanincluding, a Financing without limitation, Capital Lease or otherwiseObligations) secured by Liens permitted by Section 7.3(g) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) exceed $15,000,000 3,000,000 at any one time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12outstanding;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, hereof and listed on Schedule 7.2 7.2(d) and any refinancings, refundings, renewals or extensions thereof not increasing (without any increase in the principal amount thereof or any shortening of the maturity of any principal amount thereof);
(e) Guarantee Obligations made in the ordinary course of business by Holdings, the Borrower or any of its Subsidiaries (other than any SPC) of obligations of the Borrower or any Subsidiary Guarantor;
(f) unsecured Indebtedness owing to sellers of Towers and Tower Companies and constituting a Person which becomes a Subsidiary after portion of the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to consideration for the acquisition of such corporation Towers or Tower Companies by the Borrower no Default or Event a Subsidiary Guarantor, so long as either (1)(x) such Indebtedness (excluding any deferred purchase consideration which is contingent) is subordinated to the Obligations on substantially the terms of Default shall have occurred and be continuingSchedule 7.2(f), and any refinancings, refundings, renewals or extensions thereof not increasing (y) the aggregate principal amount thereof.of all Indebtedness under this clause (1) at any one time outstanding shall not exceed $50,000,000 (excluding any deferred purchase consideration which is contingent) and (z) the aggregate amount of all deferred purchase consideration which is contingent under this clause (1) at any one time outstanding shall not exceed $15,000,000 or (2) the aggregate principal amount of Indebtedness owing to such sellers is covered by Letters of Credit;
(g) Indebtedness constituting deposits of Holdings (i) permitted by clause (ii) of Section 7.15(a) and (ii) in respect of senior notes and any other Indebtedness, which notes or other Indebtedness shall have (A) a maturity date pursuant to secure which no portion of the performance principal thereof shall be payable earlier than the maturity date of bidsthe Senior Notes, trade contracts (B) terms and conditions no more restrictive than the terms and conditions of the Senior Notes and (C) any other than for borrowed money), leases, statutory obligations, surety terms and appeal bonds and performance bonds and other obligations of a like nature that are incurred in conditions reasonably satisfactory to the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;Administrative Agent; and
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of SPC permitted by clause (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;6.12(m).
Appears in 1 contract
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower under the any Loan DocumentsParty pursuant to any Loan Document;
(b) Indebtedness (i) of the Parent Borrower to a Wholly Owned Subsidiary, (ii) any Subsidiary and of a Domestic Wholly any Wholly-Owned Subsidiary Guarantor to the Parent Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness secured by Liens permitted by Section 7.3(g); provided that the Parent Borrower shall be in compliance, on a pro forma basis after giving effect to the incurrence of such Indebtedness, with the financial covenants contained in Section 7.1 recomputed as at the last day of the most recently ended fiscal quarter of the Parent Borrower or any Subsidiary and its Subsidiaries for which financial statements are available as if such Indebtedness had been incurred to finance on the acquisition or construction first day of fixed or capital assets each relevant period for testing such compliance;
(whether pursuant to a loan, a Financing d) Capital Lease or otherwise) Obligations in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) exceed $15,000,000 40,000,000 at any one time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notesoutstanding;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, Closing Date and listed on Schedule 7.2 7.2(e) and any refinancings, refundings, renewals or extensions thereof not increasing (without any increase in the principal amount thereof);
(f) guarantees made in the ordinary course of business by the Parent Borrower or any of its Subsidiaries of obligations of any Wholly-Owned Subsidiary Guarantor;
(g) Indebtedness of a Person which becomes a Subsidiary after the date hereof Parent Borrower or its Subsidiaries on account of industrial revenue bonds in an aggregate principal amount not to exceed $40,000,000 at any one time outstanding;
(h) guarantees made in the ordinary course of business by the Parent Borrower or any of its Subsidiaries of lease obligations of their customers in respect of equipment sold by the Parent Borrower or any of its Subsidiaries to a third party and then leased to such customer in an aggregate amount outstanding at any time outstanding not exceeding to exceed $30,000,000;
(i) Indebtedness in respect of letters of credit (not otherwise permitted under this Section 7.2) outstanding in the ordinary course of business in an aggregate face amount not to exceed $15,000,000, minus 50,000,000;
(j) Indebtedness of (i) any Subsidiary that is not a Loan Party to any other Subsidiary that is not a Loan Party and (ii) the sum any Subsidiary Guarantor to any Subsidiary that is not a Loan Party;
(k) Indebtedness of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a any Foreign Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect or Foreign Subsidiary Holdco to the acquisition of such corporation by the Parent Borrower or any other Subsidiary (so long as no Default or Event of Default shall have occurred and be continuingcontinuing at the time of the incurrence of such Indebtedness), provided that (x) the requirements of Section 6.9 are satisfied and any refinancings, refundings, renewals or extensions thereof not increasing (y) the aggregate principal amount thereof.
(g) of such Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;
outstanding shall not exceed the greater of $150,000,000 or 10% of the Consolidated Total Tangible Assets (hmeasured on the date of incurrence of the most recent of such Indebtedness), and provided, further, that any Indebtedness permitted by this Section 7.2(k) Indebtedness under Interest Rate Protection Agreements shall be evidenced by a note or similar instrument and Hedge Agreements entered into pledged in accordance with Section 6.9 and the ordinary course of business for hedging purposes Guarantee and not for speculative purposesCollateral Agreement;
(i) Seller Permitted Unsecured Indebtedness; provided that (x) at the time of, and after giving effect to, the incurrence of such Indebtedness, no Default or Event of Default shall have occurred and be continuing and (y) the Parent Borrower shall be in compliance, on a pro forma basis after giving effect to the incurrence of such Indebtedness, with the financial covenants contained in Section 7.1(a) and (b), in each case recomputed as at the last day of the most recently ended fiscal quarter of the Parent Borrower and its Subsidiaries for which financial statements are available as if such Indebtedness had been incurred on the first day of such period and (ii) any guarantee by any Subsidiary in respect of any Permitted Unsecured Indebtedness; provided that (x) no Subsidiary that is not a Loan Party shall guarantee any Permitted Unsecured Indebtedness and (y) any such guarantee in respect of Permitted Unsecured Indebtedness shall be unsecured;
(m) Indebtedness incurred in connection with or in substitution or replacement of a Receivables Transfer Program in an aggregate principal amount at any time outstanding not exceeding to exceed $100,000,000;
(i) $15,000,000 minus Permitted Subordinated Indebtedness; provided that the Parent Borrower shall be in compliance, on a pro forma basis after giving effect to the incurrence of such Indebtedness, with the financial covenant contained in Section 7.1(b), recomputed on a pro forma basis as at the last day of the most recently ended fiscal quarter of the Parent Borrower and its Subsidiaries for which financial statements are available as if such Indebtedness had been incurred on the first day of such period and (ii) the sum any guarantee by any Subsidiary in respect of any Permitted Subordinated Indebtedness; provided that (Ax) the amount of no Subsidiary that is not a Loan Party shall guarantee any Permitted Subordinated Indebtedness outstanding under clauses (c) and (fy) any such guarantee shall be subordinated to the prior payment in full of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) Obligations on the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in same basis as the form of Guarantee Obligations permitted by Section 7.4related Permitted Subordinated Indebtedness; and
(ko) unsecured Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) this Section 7.2 in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;50,000,000.
Appears in 1 contract
Samples: Credit Agreement (Conmed Corp)
Limitation on Indebtedness. Create, incur, assume or suffer to exist (in each case, to "Incur") any Indebtedness, except:
(a) Indebtedness of the Borrower under the any Loan DocumentsParty pursuant to any Loan Document;
(b) Indebtedness (i) of the Borrower to a Wholly Owned Subsidiary, (ii) any Subsidiary and of a Domestic any Wholly Owned Subsidiary Guarantor to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwisesecured by Liens permitted by Section 7.3(h) in an aggregate principal amount not exceeding as to exceed, when added to the Borrower and its Subsidiaries Capital Lease Obligations permitted under paragraph (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (id) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.127.2, $10,000,000 at any one time outstanding;
(d) Capital Lease Obligations in an aggregate principal amount not to exceed, when added to the Indebtedness permitted under paragraph (c) of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notesthis Section 7.2, $10,000,000 at any one time outstanding;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, hereof and listed on Schedule 7.2 7.2(e) and any refinancings, refundings, renewals or extensions thereof not increasing (without any increase in the principal amount thereof);
(f) Indebtedness guarantees made in the ordinary course of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation business by the Borrower no Default or Event any of Default shall have occurred and be continuing, and its Subsidiaries of obligations of any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.Wholly Owned Subsidiary Guarantor;
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at under any time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Hedging Agreements entered into to protect the ordinary course Borrower or any of business for hedging purposes its Subsidiaries against fluctuations in interest rates or commodity prices and not for speculative purposes;
(ih) Seller Indebtedness renewals and extensions (in an aggregate the same or lesser principal amount at on similar terms and conditions and in any time outstanding not exceeding case no less favorable to the interests of the Lenders) of any Indebtedness listed in the foregoing clauses;
(i) $15,000,000 minus (ii) Indebtedness of the sum Borrower and its Subsidiaries to Commodity Credit Corporation; provided that such Indebtedness provides no recourse to the Borrower or any of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12its Subsidiaries;
(j) Indebtedness of Xxxxx Finance Company not to exceed $5,000,000 in the form of Guarantee Obligations permitted by Section 7.4aggregate principal amount outstanding at any time;
(k) other Indebtedness not to exceed $10,000,000 in aggregate principal amount outstanding at any time; and
(kl) Indebtedness not otherwise permitted by of the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not Permitted Sellers pursuant to exceed $5,000,000;the Receivables Securitization Program.
Appears in 1 contract
Samples: Restructuring Credit Agreement (Imperial Sugar Co /New/)
Limitation on Indebtedness. Create, incur, assume or suffer to exist (in each case, to "INCUR") any Indebtedness, except:
(a) Indebtedness of the Borrower under the any Loan DocumentsParty pursuant to any Loan Document;
(b) Indebtedness (i) of between the Borrower to and a Wholly Owned SubsidiarySubsidiary or between one Subsidiary and another; PROVIDED that (a) if the Borrower is the obligor on such Indebtedness, (ii) of a Domestic Wholly Owned Subsidiary such Indebtedness is expressly subordinated in liquidation to the Borrower or any other Subsidiaryprior payment in full in cash of all Obligations; and (b) if a Subsidiary that is not a Subsidiary Guarantor is the obligor on such Indebtedness, (iii) of Servicios such Indebtedness owing to the Borrower or any Subsidiary Guarantor, together with all intercompany Indebtedness owing from all Subsidiaries that are not Subsidiary Guarantors to the Borrower or a Subsidiary Guarantor, does not exceed $5,000,000 in aggregate principal amount at any time outstanding;
(c) Indebtedness secured by Xxxxx permitted by Section 7.3(g) in an aggregate principal amount not to exceed $2,000,000 at any one time outstanding;
(d) Capital Lease Obligations in an aggregate principal amount not to exceed $5,000,000 at any one time outstanding;
(e) Indebtedness outstanding on the date hereof and listed on Schedule 7.2(e) to the Disclosure Letter and any refinancings, refundings, renewals or extensions thereof (without any increase in the principal amount thereof);
(f) unsecured Indebtedness of any Loan Party incurred in the ordinary course of business as a result of open account arrangements or accrued expenses in current account payables;
(g) Guarantee Obligations of any Indebtedness permitted by this Section 7.2; and
(h) Indebtedness under Interest Rate Protection Agreements required by Section 6.9;
(i) Indebtedness in respect of a revolving credit facility (the "FRENCH REVOLVER") for the purpose of funding the working capital needs in the ordinary course of business of Axiohm S.A. in French francs; PROVIDED that (i) the Dollar equivalent (determined in good faith by the Borrower) of the aggregate outstanding principal amount thereof (the "AXIOHM S.A. EQUIVALENT OUTSTANDINGS") shall not exceed $10,000,000 at any one time and (ii) on the date of any incurrence thereof, after giving effect thereto, the sum of the Axiohm S.
A. Equivalent Outstandings and aggregate Revolving Extensions of Credit of all Revolving Credit Lenders shall not exceed the aggregate Revolving Credit Commitments of all Revolving Credit Lenders; PROVIDED, FURTHER, that, for purposes of this clause (ii) only, the undrawn and unexpired amount of any outstanding Letter of Credit (in a face amount not to exceed $10,000,000) issued to support obligations under the French Revolver shall not be deemed to be a Revolving Extension of Credit;
(j) additional Indebtedness of Subsidiaries that are not Subsidiary Guarantors in an aggregate principal amount at any time outstanding not to exceed $5,000,000 5,000,000;
(k) guarantees made in excess the ordinary course of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to business by the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign of its Subsidiaries of the Borrower) not to exceed $1,000,000, provided obligations of any Subsidiary Guarantor that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any is a Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;; and
(ci) Indebtedness of the Borrower or any Subsidiary incurred to finance in respect of the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) Senior Subordinated Notes in an aggregate principal amount not exceeding as to the Borrower exceed $100,000,000 and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the amount Guarantee Obligations of Indebtedness outstanding under clauses (f) and (i) any Subsidiary Guarantor in respect of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof;
(f) Indebtedness of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect subordinated to the acquisition of Obligations to the same extent as such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereofIndebtedness.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;
Appears in 1 contract
Samples: Credit Agreement (Axiohm Transaction Solutions Inc)
Limitation on Indebtedness. Create, incur, assume or suffer to -------------------------- exist any Indebtedness, except:
(a) Indebtedness of the Borrower under the any Loan DocumentsParty pursuant to any Loan Document;
(b) Indebtedness (i) of the Borrower Company to a Wholly Owned Subsidiary, (ii) any Subsidiary and of a Domestic any Wholly Owned Subsidiary Guarantor to the Borrower Company or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwisesecured by Liens permitted by Section 8.3(g) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries exceed $5,000,000 at any one time outstanding;
(i) Capital Lease Obligations with respect to the land and building in Xxxxxx, Italy currently owned by an affiliate of Fiat S.p.A. in an aggregate principal amount not to exceed $15,000,000 21,000,000 at any one time outstanding minus outstanding, (ii) Capital Lease Obligations (if any) with respect to the amount of Indebtedness outstanding under clauses (f) GE Sale-Leaseback and (iiii) other Capital Lease Obligations in an aggregate principal amount (in the case of this Section 7.2 and the amount of indebtedness attributable clause (iii) only) not to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notesexceed $10,000,000 at any one time outstanding;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, hereof and listed on Schedule 7.2 8.2(e) and any refinancings, refundings, renewals or extensions thereof not increasing (without any increase in the principal amount thereof) which are not otherwise prohibited under this Agreement and which do not have the effect of reducing the collateral security and credit support provided on account of amounts owing under any Facility hereunder;
(f) Indebtedness of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable may be deemed to sale and leaseback transactions permitted exist pursuant to Section 7.12the Domestic Receivables Facility, provided that (x) such so long as the Domestic Receivables Facility Attributed Indebtedness existed at no time exceeds the time such corporation became a Subsidiary and was not created Domestic Receivables Maximum Commitment Amount as then in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.effect;
(g) Acquired Indebtedness may be assumed or continued by a Subsidiary of the Company acquired pursuant to, or created to effect, a Permitted Acquisition, so long as the aggregate principal amount of all such Acquired Indebtedness incurred or assumed during the term of this Agreement does not exceed $30,000,000 (without regard to the amount of any Acquired Indebtedness in connection with any of the Permitted Acquisitions set forth on Schedule 1.1E);
(h) intercompany Indebtedness among the Company and its Subsidiaries to extent permitted by Sections 8.8(e) through (i);
(i) Indebtedness of any Wholly Owned Subsidiary to the Company or to a Wholly Owned Subsidiary Guarantor constituting deposits to secure the performance purchase price in respect of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations intercompany transfers of a like nature that are incurred goods made in the ordinary course of business, business to the extent not to exceed $5,000,000 in the aggregate at any time outstanding;
(h) constituting Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12borrowed money;
(j) Indebtedness of EHE and/or its Subsidiaries which may be deemed to exist pursuant to the European Receivables Facility, so long as the European Receivables Facility Attributed Indebtedness at no time exceeds the European Receivables Maximum Commitment Amount as then in the form of Guarantee Obligations permitted by Section 7.4; andeffect;
(k) Indebtedness not otherwise permitted guarantees made in the ordinary course of business by the foregoing clauses Company or any of its Subsidiaries of obligations of the Company or any Wholly Owned Subsidiary Guarantor;
(al) through Indebtedness of the Company evidenced by the increase in the principal amount of the Convertible Notes in connection with the accretion thereof;
(jm) short-term Indebtedness of Foreign Subsidiaries incurred for working capital purposes in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;15,000,000 at any one time outstanding; and
(n) additional Indebtedness of the Company or any of its Subsidiaries in an aggregate principal amount (for the Company and all Subsidiaries) not to exceed $5,000,000 at any one time outstanding.
Appears in 1 contract
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower under the any Loan DocumentsParty pursuant to any Loan Document;
(b) Indebtedness of (i) of the Borrower to a Wholly Owned Subsidiary, any Subsidiary and (ii) of a Domestic Wholly Owned any Subsidiary to the Borrower or any other Subsidiary; provided that, (iii) the aggregate amount of Servicios to the Borrower or any Indebtedness of any Subsidiary in an aggregate principal amount at that is not a Loan Party to any time outstanding Loan Party shall not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any one time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agentoutstanding;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loanincluding, a Financing without limitation, Capital Lease or otherwiseObligations) secured by Liens permitted by Section 7.3(h) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) exceed $15,000,000 5,000,000 at any one time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12outstanding;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, hereof and listed on Schedule 7.2 7.2(d) and any refinancings, refundings, renewals or extensions thereof not increasing (without any increase in the principal amount thereof (other than by the refinancing costs thereof including premiums and make-whole payments) or any shortening of the maturity of any principal amount thereof);
(e) Guarantee Obligations made in the ordinary course of business by the Borrower or any of its Subsidiaries of obligations of the Borrower or any Subsidiary Guarantor;
(f) unsecured Recourse Indebtedness of a Person the REIT and its Subsidiaries which (i) shall (other than the Bilateral Line of Credit) mature at least one year after the Revolving Credit Termination Date and (ii) shall not exceed on any date of determination, an amount equal to 15% of Total Asset Value on such date at any one time outstanding;
(g) Non-Recourse Indebtedness of any Subsidiary that becomes a Subsidiary of the Borrower after the date hereof in an aggregate principal amount accordance with Section 7.7(g), which exists at any the time outstanding not exceeding (i) $15,000,000such Person becomes a Subsidiary; provided that, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time of such corporation became a Subsidiary acquisition and was not created in anticipation thereof connection therewith or in contemplation thereof, and (y) the Borrower shall deliver to the Administrative Agent a pro forma Compliance Certificate (i) certifying that, immediately prior to and after giving effect to such additional Indebtedness, no Default or Event of Default shall exist and (ii) containing all information and calculations necessary, and taking into consideration such additional Indebtedness, for determining pro forma compliance with the provisions of Section 7.1 hereof
(h) Non-Recourse Indebtedness (other than Permitted Construction Financing) in respect of the Non-Recourse Subsidiary Borrowers that is secured by either (i) Real Property owned or leased by such Non-Recourse Subsidiary Borrowers and any related Property permitted by Section 7.3(k) or (ii) the Capital Stock of any Subsidiary of such Non-Recourse Subsidiary Borrower that is also a Non-Recourse Subsidiary Borrower, including, in either case, any refinancing of any Indebtedness incurred pursuant to Section 7.2(d); provided that, with respect to any of the foregoing Indebtedness:
(A) none of the Group Members provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness) or is directly or indirectly liable (as guarantor or otherwise), other than (i) any Subsidiary of the Borrower that is a direct or indirect parent or Subsidiary of such Non-Recourse Subsidiary Borrower or (ii) the Non-Recourse Parent Guarantor as guarantor (x) to the extent permitted by Section 7.2(j) for fraud, misrepresentation, misapplication of cash, waste, environmental claims and liabilities, prohibited transfers, violations of special purpose entity covenants and other circumstances customarily excluded by institutional lenders from exculpation provisions and included in separate guarantee or indemnification agreements in non-recourse financing of real estate or (y) to the extent otherwise permitted by Section 7.2(f); and
(B) as to which the lenders thereunder will not have any recourse to the Capital Stock or assets of the Group Members other than the assets securing such Indebtedness, additions, accessions and improvements thereto and proceeds thereof, the Capital Stock of the Non-Recourse Subsidiary Borrower that is the borrower under such Indebtedness or the Capital Stock of any direct or indirect parent of such Non-Recourse Subsidiary Borrower and, in the case of a Non-Recourse Parent Guarantor, recourse against such Non-Recourse Parent Guarantor for fraud, misrepresentation, misapplication of cash, waste, environmental claims and liabilities, prohibited transfers, violations of special purpose entity covenants and other circumstances customarily excluded by institutional lenders from exculpation provisions and included in separate guarantee or indemnification agreements in non-recourse financings of real estate, and Guarantee Obligations permitted by Section 7.2(f); and provided, further, that, (x) immediately prior to and after giving effect to the acquisition incurrence of such corporation by the Borrower Indebtedness, no Default or Event of Default shall have occurred and be continuing, and (y) after giving pro forma effect to such Indebtedness and the use of proceeds therefrom, the Borrower shall be in compliance with the provisions of Section 7.1 hereof. For the avoidance of doubt, if at any refinancingstime following the Closing Date any Group Member acquires the remaining Capital Stock of any Joint Venture not owned by the Group Members on the Closing Date, refundingsany Real Property owned by such Joint Venture shall be included in clause (i) of this Section 7.2(h);
(i) Permitted Construction Financing of any Non-Recourse Subsidiary Borrower; provided that, renewals with respect to any of the foregoing Indebtedness:
(A) none of the Group Members provides credit support of any kind (including any undertaking, agreement or extensions instrument that would constitute Indebtedness) or is directly or indirectly liable (as guarantor or otherwise), other than (i) any Subsidiary of the Borrower that is a direct or indirect parent or Subsidiary of such Non-Recourse Subsidiary Borrower or (ii) the Non-Recourse Parent Guarantor as guarantor (x) to the extent permitted by Section 7.2(j) for fraud, misrepresentation, misapplication of cash, waste, environmental claims and liabilities, prohibited transfers, violations of special purpose entity covenants and other circumstances customarily excluded by institutional lenders from exculpation provisions and included in separate non-monetary completion guarantee or indemnification agreements in construction financing of real estate or (y) to the extent otherwise permitted by Section 7.2(f), including customary monetary completion and repayment guarantees; and
(B) as to which the lenders thereunder will not have any recourse to the Capital Stock or assets of the Group Members other than the assets securing such Indebtedness, additions, accessions and improvements thereto and proceeds thereof and, in the case of a Non-Recourse Parent Guarantor, recourse against such Non-Recourse Parent Guarantor for (x) fraud, misrepresentation, misapplication of cash, waste, environmental claims and liabilities, prohibited transfers, violations of special purpose entity covenants and other circumstances customarily excluded by institutional lenders from exculpation provisions and included in separate non-monetary completion guarantee or indemnification agreements in construction financing of real estate, and or (y) to the extent otherwise permitted by Section 7.2(f), including customary monetary completion and repayment guarantees; provided, further, that, (x) immediately prior to and after giving effect to the incurrence of such Indebtedness, no Default or Event of Default shall have occurred and be continuing, and (y) after giving pro forma effect to such Indebtedness and the use of proceeds therefrom, the Borrower shall be in compliance with the provisions of Section 7.1 hereof;
(j) Permitted Limited Recourse Guarantees of Indebtedness permitted by Sections 7.2(h) and (i), provided that, the sum of, without duplication, (x) the aggregate amount of Permitted Limited Recourse Guarantees comprised of monetary completion or payment guarantees plus (y) the aggregate amount of Permitted Limited Recourse Guarantees required by GAAP to be reflected as a liability on the consolidated balance sheet of the Group Members shall not increasing exceed the amount permitted to be incurred under Section 7.2(f) (together with all other Indebtedness incurred pursuant to such Section at such time) at any one time outstanding;
(k) unsecured Indebtedness incurred by the Borrower and its Subsidiaries to finance customary leasehold improvements required by the terms of, or as a condition to the entering into of, operating leases, subleases, licenses, occupancy agreements and rights-of-use entered into by the Borrower and its Subsidiaries in their respective capacities as lessor or a similar capacity in the ordinary course of business;
(l) additional Indebtedness of the Borrower and its Subsidiaries not otherwise permitted hereunder in an aggregate principal amount thereof.not to exceed $2,500,000 at any one time outstanding; and
(gm) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are payables incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;Group Members’ businesses.
Appears in 1 contract
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower under the any Loan DocumentsParty pursuant to any Loan Document;
(b) Indebtedness (i) of the Parent Borrower to a Wholly Owned Subsidiary, (ii) any Subsidiary and of a Domestic Wholly Owned any Subsidiary Guarantor to the Parent Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness secured by Liens permitted by Section 7.3(g); provided that the Parent Borrower shall be in compliance, on a pro forma basis after giving effect to the incurrence of such Indebtedness, with the financial covenants contained in Section 7.1 recomputed as at the last day of the most recently ended fiscal quarter of the Parent Borrower or any Subsidiary and its Subsidiaries for which financial statements are available as if such Indebtedness had been incurred to finance on the acquisition or construction first day of fixed or capital assets each relevant period for testing such compliance;
(whether pursuant to a loan, a Financing d) Capital Lease or otherwise) Obligations in an aggregate principal amount not exceeding as to exceed the Borrower and its Subsidiaries greater of (ix) $15,000,000 50,000,000 and (y) 3.0% of Consolidated Total Assets (measured on the date of incurrence of such Capital Lease Obligations) at any one time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notesoutstanding;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, Closing Date and listed on Schedule 7.2 7.2(e) and any refinancings, refundings, renewals or extensions thereof not increasing (without any increase in the principal amount thereof);
(f) guarantees made in the ordinary course of business by the Parent Borrower or any of its Subsidiaries of obligations of any Subsidiary Guarantor;
(g) Indebtedness of a Person which becomes a Subsidiary after the date hereof Parent Borrower or its Subsidiaries on account of industrial revenue bonds in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) to exceed the sum greater of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof $50,000,000 and (y) immediately after giving effect 3.0% of Consolidated Total Assets (measured on the date of incurrence of such Indebtedness) at anyone one time outstanding;
(h) guarantees made in the ordinary course of business by the Parent Borrower or any of its Subsidiaries of lease obligations of their customers in respect of equipment sold by the Parent Borrower or any of its Subsidiaries to a third party and then leased to such customer in an aggregate amount outstanding at any time not to exceed the greater of (x) $50,000,000 and (y) 3.0% of Consolidated Total Assets (measured on the date of incurrence of such Indebtedness);
(i) Indebtedness in respect of letters of credit (not otherwise permitted under this Section 7.2) outstanding in the ordinary course of business in an aggregate face amount not to exceed the greater of (x) $50,000,000 and (y) 3.0% of Consolidated Total Assets (measured on the date of incurrence of such Indebtedness);
(j) Indebtedness of (i) any Subsidiary that is not a Loan Party to any other Subsidiary that is not a Loan Party and (ii) any Subsidiary Guarantor to any Subsidiary that is not a Loan Party;
(k) Indebtedness of any Foreign Subsidiary or Foreign Subsidiary Holdco to the acquisition of such corporation by the Parent Borrower or any other Subsidiary (so long as no Default or Event of Default shall have occurred and be continuingcontinuing at the time of the incurrence of such Indebtedness); provided that (x) the requirements of Section 6.9 are satisfied and (y) the aggregate principal amount of such Indebtedness at any time outstanding shall not exceed the greater of (A) $150,000,000 and (B) 10.0% of Consolidated Total Tangible Assets (measured on the date of incurrence of such Indebtedness); provided, further, that any Indebtedness permitted by this Section 7.2(k) shall be evidenced by a note or similar instrument and pledged in accordance with Section 6.9 and the Guarantee and Collateral Agreement;
(i) Permitted Unsecured Indebtedness; provided that (x) at the time of, and after giving effect to, the incurrence of such Indebtedness, no Default or Event of Default shall have occurred and be continuing (or, with respect to any refinancingsPermitted Unsecured Indebtedness incurred to finance the Filtration Acquisition, refundingsno Event of Default under clause (a) or clause (f) of Article VIII shall have occurred and be continuing) and (y) the Parent Borrower shall be in compliance, renewals on a pro forma basis after giving effect to the incurrence of such Indebtedness, with the financial covenant contained in Section 7.1 (b), in each case recomputed as at the last day of the most recently ended fiscal quarter of the Parent Borrower and its Subsidiaries for which financial statements are available as if such Indebtedness had been incurred on the first day of such period (or, at the election of the Parent Borrower, with respect to any Permitted Unsecured Indebtedness incurred to finance the Filtration Acquisition, the Consolidated Total Leverage Ratio of the Parent Borrower and its Subsidiaries, on a pro forma basis after giving effect to the incurrence of such Indebtedness, shall not exceed 5.75 to 1.00 (or, if the Parent Borrower issues at least $75 million of Capital Stock after the date of execution of the Filtration Acquisition Agreement but on or extensions thereof prior to the consummation of the Filtration Acquisition, 5.25 to 1.00) recomputed as at the last day of the most recently ended fiscal quarter of the Parent Borrower and its Subsidiaries for which financial statements are available as of the date of execution of the Filtration Acquisition Agreement as if the Filtration Acquisition and related financings or other transactions (without regard to the making of any earn-out payments) had occurred on the first day of the relevant period for testing such compliance) and (ii) any guarantee by any Subsidiary in respect of any Permitted Unsecured Indebtedness; provided that (x) no Subsidiary that is not increasing the a Loan Party shall guarantee any Permitted Unsecured Indebtedness and (y) any such guarantee in respect of Permitted Unsecured Indebtedness shall be unsecured;
(m) Indebtedness incurred in connection with or in substitution or replacement of a Receivables Transfer Program in an aggregate principal amount thereof.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed the greater of (x) $5,000,000 125,000,000 and (y) 7.5% of Consolidated Total Assets (measured on the date of incurrence of such Indebtedness);
(i) Permitted Subordinated Indebtedness; provided that the Parent Borrower shall be in compliance, on a pro forma basis after giving effect to the incurrence of such Indebtedness, with the financial covenant contained in Section 7.1(b), recomputed on a pro forma basis as at the last day of the most recently ended fiscal quarter of the Parent Borrower and its Subsidiaries for which financial statements are available as if such Indebtedness had been incurred on the first day of such period and (ii) any guarantee by any Subsidiary in respect of any Permitted Subordinated Indebtedness; provided that (x) no Subsidiary that is not a Loan Party shall guarantee any Permitted Subordinated Indebtedness and (y) any such guarantee shall be subordinated to the prior payment in full of the Obligations on the same basis as the related Permitted Subordinated Indebtedness;
(o) unsecured Indebtedness not otherwise permitted by this Section 7.2 in an aggregate principal amount not to exceed the greater of (x) $60,000,000 and (y) 3.25% of Consolidated Total Assets (measured on the date of incurrence of such Indebtedness);
(p) (i) Obligations under or in respect of interest rate Swap Agreements up to an aggregate notional principal amount not to exceed at any time an amount equal to the Commitments of all the Lenders in the aggregate at any time outstanding;
such time, (hii) Indebtedness Obligations owing under Interest Rate Protection Agreements and Hedge Swap Agreements entered into the ordinary course of business for hedging purposes in order to manage existing or anticipated exchange rate or commodity price risks and not for speculative purposes, (iii) Obligations in respect of Swap Agreements entered into in connection with any Permitted Bond Hedge Transaction and (iv) Obligations in respect of Swap Agreements entered into in connection with any Permitted Warrant Transaction;
(iq) Seller Indebtedness of a Subsidiary of the Parent Borrower acquired pursuant to the Filtration Acquisition; provided that the Consolidated Senior Secured Leverage Ratio of the Parent Borrower and its Subsidiaries, computed on a pro forma basis as at the last day of the most recently ended fiscal quarter of the Parent Borrower and its Subsidiaries for which financial statements are available as of the date of execution of the Filtration Acquisition Agreement giving effect to the Indebtedness contemplated by this clause (q) and calculated as if the Filtration Acquisition and related financings or other transactions (without regard to the making of any earn-out payments) had occurred on the first day of the relevant period for testing such compliance, is no greater than 4.00 to 1.00; and
(r) Indebtedness of the Parent Borrower and the Restricted Subsidiaries assumed in an aggregate principal amount at any time outstanding not exceeding connection with Permitted Business Acquisitions or similar Investments so long as (i) $15,000,000 minus after giving effect to the assumption of such Indebtedness and such Permitted Business Acquisition on a pro forma basis as of the last day of the most recent period of four consecutive fiscal quarters have been delivered, the Parent Borrower shall be in compliance, on a pro forma basis with the financial covenants contained in Section 7.1(a) and (b), in each case recomputed as at the last day of the most recently ended fiscal quarter of the Parent Borrower and its Restricted Subsidiaries for which financial statements are available as if such Indebtedness had been incurred on the first day of such period, (ii) the sum before and after giving effect thereto, no Event of (A) the amount of Indebtedness outstanding under clauses (c) Default shall have occurred and be continuing and (fiii) any such Indebtedness shall be unsecured or secured only by a mortgage, purchase money security interest, Capital Lease Obligation or similar arrangement on the Property acquired in connection with such Permitted Business Acquisition or similar Investment (and any accessions thereto or improvements thereon), and no Lien shall extend to cover any other Property of the Parent Borrower or any Subsidiary Guarantor. For purposes of determining compliance with this Section 7.2, and (A) Indebtedness need not be permitted solely by reference to one category of permitted Indebtedness described in Section 7.2(a) through (r) but may be permitted in part under any refinancings, refundings, renewals or extensions thereof not increasing the principal amount combination thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form event that an item of Guarantee Obligations Indebtedness (or any portion thereof) meets the criteria of one or more of the categories of permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (adescribed in Sections 7.2(a) through (jr), the Parent Borrower shall, in its sole discretion, classify or reclassify, or later divide, classify or reclassify, such item of Indebtedness (or any portion thereof) in an aggregate principal any manner that complies with this Section 7.2 and will only be required to include the amount at and type of such item of Indebtedness (or any time outstanding portion thereof) in one of not the above clauses and such item of Indebtedness shall be treated as having been incurred or existing pursuant to exceed $5,000,000;only one of such clauses.
Appears in 1 contract
Samples: Credit Agreement (Conmed Corp)
Limitation on Indebtedness. Create, incur, incur or assume or suffer to exist any Indebtedness, except:
(a) (i) Indebtedness of any Loan Party pursuant to any Loan Document (including any Extension Amendment) and (ii) any Refinancing Indebtedness with respect to any of the Borrower under the Loan Documentsforegoing Facilities or Classes of Term Loans;
(b) Indebtedness of any Jefferson Group Member to any other Jefferson Group Member, provided that (i) any Indebtedness (A) of Holdings, the Borrower or a Subsidiary Guarantor owing to any Non-Guarantor Subsidiary shall be subject to an Intercompany Debt Subordination Agreement, and (B) of a Non-Guarantor Subsidiary owing to any Subsidiary Guarantor or the Borrower shall not exceed $5,000,000 in aggregate principal amount at any one time outstanding during the term of this Agreement (unless such Indebtedness is subject to a perfected first priority Lien in favor of the Administrative Agent for the benefit of the Secured Parties) and (ii) any Indebtedness of any Jefferson Group Member to any other Jefferson Group Member existing as of the Closing Date shall be permitted to be maintained, modified and/or refinanced among the same Jefferson Group Members (or their successor entities) as long as, if the obligor with respect thereto is Holdings, the Borrower or a Subsidiary Guarantor and the payee with respect thereto is a Non-Guarantor Subsidiary, the same continues to be or is made subject to an Intercompany Debt Subordination Agreement, and the outstanding principal amount thereof is not increased;
(c) Indebtedness (including Capital Lease Obligations) of the Borrower or any Subsidiary secured by Liens pursuant to Section 6.3(p) incurred to finance the acquisition (including pursuant to a Wholly Owned Subsidiarysale and leaseback transaction), construction, repair, replacement or improvement of Property (iireal or personal), equipment or other assets used or useful in the business in an aggregate principal amount not to exceed $35,000,000 at any one time outstanding;
(d) of a Domestic Wholly Owned Subsidiary to Indebtedness outstanding on the Borrower Closing Date (or future advances or Indebtedness contemplated by the existing documentation evidencing such Indebtedness (including any other Subsidiary, commitment with respect thereto)) and listed and identified by type on Schedule 6.2(d) and any Indebtedness that is Refinancing Indebtedness with respect thereto;
(iiii) of Servicios to Indebtedness assumed by the Borrower or any Subsidiary in connection with any Acquisition or of any Person at the time such Person becomes a Subsidiary in connection with any Acquisition (provided that such Indebtedness existed at the time of such Acquisition or the time such Person becomes a Subsidiary and was not created in connection therewith or in contemplation thereof) that is either unsecured or secured only by the assets or business acquired in such Acquisition or the assets or business of such Person who becomes a Subsidiary (including any acquired Capital Stock), so long as, after giving effect to the assumption of such Indebtedness, (A) the Borrower shall be in Pro Forma Compliance with a Total Secured Debt Leverage Ratio of not greater than 3.50:1.00 (treating any unsecured Indebtedness incurred under Section 6.2(e)(i) as secured Indebtedness for purposes of calculating the Total Secured Debt Leverage Ratio) or (B) the Total Secured Debt Leverage Ratio for the Borrower measured on a Pro Forma Basis is not increased as a result of such assumption of Indebtedness, and (ii) Indebtedness incurred to finance an Acquisition that is unsecured or secured only by the assets or business acquired in such Acquisition (including any acquired Capital Stock), and, in each case, any Refinancing Indebtedness in respect thereof so long as, before and after giving effect to such Indebtedness, (A) the Borrower shall be in Pro Forma Compliance with a Total Secured Debt Leverage Ratio of not greater than 3.50:1.00 (treating any unsecured Indebtedness incurred under Section 6.2(e)(ii) as secured Indebtedness for purposes of calculating the Total Secured Debt Leverage Ratio) or (B) the Total Secured Debt Leverage Ratio for the Borrower measured on a Pro Forma Basis is not increased as a result of such incurrence of Indebtedness; provided, that the aggregate principal amount of Indebtedness incurred by a Subsidiary other than a Subsidiary Guarantor under this clause 6.2(e)(ii) shall not exceed $10,000,000 at any one time outstanding not to exceed $5,000,000 in excess outstanding;
(f) Construction Related Indebtedness of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign a Non-Recourse Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,00025,000,000 at any one time outstanding, provided that that, with respect to any such Indebtedness referred to in clauses Indebtedness, (iiix) and (iv) hereof, if to none of the Borrower or any Domestic Subsidiaryof its Subsidiaries (other than such Non-Recourse Subsidiary Borrower) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness) or is evidenced directly or indirectly liable (as guarantor or otherwise), other than for fraud, misrepresentation, misapplication of cash, waste, Environmental Claims and liabilities, prohibited transfers, violations of special purpose entity covenants, voluntary or involuntary bankruptcy and other circumstances customarily excluded by a promissory note institutional lenders from exculpation provisions and/or included in separate guarantee or promissory notes indemnification agreements in non-recourse or construction financing of real estate, (y) as to which has or the lenders thereunder will not have been pledged any recourse to the Collateral Agent on terms Capital Stock or assets of the Borrower nor any of its Subsidiaries other than the assets of such Non-Recourse Subsidiary Borrower securing such indebtedness, additions, accessions and conditions reasonably satisfactory to improvements thereto and proceeds thereof and the Administrative Agent;
(c) Indebtedness Capital Stock of the Non-Recourse Subsidiary Borrower and, in the case of the Borrower or any Subsidiary incurred to finance the acquisition (other than such Non-Recourse Subsidiary Borrower), recourse against such party for fraud, misrepresentation, misapplication of cash, waste, Environmental Claims and liabilities, prohibited transfers, violations of special purpose entity covenants, voluntary or involuntary bankruptcy and other circumstances customarily excluded by institutional lenders from exculpation provisions and/or included in separate guarantee or indemnification agreements in non-recourse or construction financing of fixed or capital assets real estate, and (whether z) to the extent that the lenders thereunder will have recourse to the Capital Stock of the borrower of such Indebtedness, such borrower shall be a Non-Recourse Subsidiary Borrower. For the purposes of this Section, pledges of Hedge Agreements and posting of letters of credit in lieu of reserves shall not constitute credit support;
(g) Guarantee Obligations of (x) Indebtedness otherwise permitted to be incurred pursuant to a loan, a Financing Lease or otherwisethis Section 6.2 and (y) Indebtedness of Unrestricted Subsidiaries and joint ventures in an aggregate principal amount not exceeding as to exceed $7,500,000 at any one time; provided that the aggregate principal amount of Guarantee Obligations of Loan Parties of Indebtedness of a Non-Guarantor Subsidiary under clause (y) shall not exceed $5,000,000 at any one time outstanding during the term of this Agreement;
(i) Indebtedness arising under or in respect of any surety, performance, bid or appeal bonds and performance and completion guarantees provided by the Borrower or any Subsidiary of the Borrower, or obligations in respect of letters of credit, bank guarantees, bankers’ acceptances or similar instruments related thereto, in the ordinary course of its business, and (ii) Indebtedness in respect of customary agreements providing for indemnification, purchase price adjustments or similar obligations incurred in connection with any Investment, Disposition or Acquisition;
(i) letters of credit and the related guarantees thereof incurred in the ordinary course of business in an aggregate principal amount not to exceed $20,000,000 at any one time outstanding, which Indebtedness may be secured by cash collateral; provided, however, that upon the drawing of any such letters of credit, such obligations are reimbursed within 60 days following such drawing or incurrence;
(j) additional unsecured Indebtedness (including, without limitation, Guarantee Obligations) of any Jefferson Group Member in an aggregate principal amount (for all Jefferson Group Members) not to exceed $25,000,000 at any one time outstanding; provided, that the aggregate amount of Indebtedness incurred by a Subsidiary other than a Subsidiary Guarantor under this clause 6.2(j) shall not exceed $2,500,000 at any one time outstanding;
(k) Indebtedness of any Jefferson Group Member under working capital facilities or lines of credit (including letters of credit) in an aggregate amount not to exceed $20.0 million, which working capital facilities or lines of credit may be secured on a pari passu basis with the Facility and may be provided by any direct or indirect parent company of the Borrower or by Fortress or its affiliated funds;
(l) [reserved];
(m) [reserved];
(n) unsecured guarantees of the obligations of the Borrower and its Subsidiaries (i) $15,000,000 at in connection with any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to Disposition that is a sale and leaseback transactions arrangement permitted pursuant to by Section 7.126.11;
(do) Indebtedness of JRTI in respect of the POBI Bonds;
(p) unsecured Indebtedness of the Borrower and its Subsidiaries under that is subordinated in right of payment to the Convertible Subordinated Debentures Obligations on terms that are reasonably satisfactory to the Administrative Agent and that (i) has no amortization or other mandatory payments, repurchase, repayment or similar requirements (except as a result of a Fundamental Change so long as any rights of the 1997 Convertible Subordinated Notesholders thereof upon the occurrence of such Fundamental Change shall be subject to the satisfaction of the Termination Conditions) prior to the date that is 91 days after the Latest Maturity Date in effect at the time of incurrence and (ii) does not require any payment of cash interest prior to the date that the Termination Conditions are satisfied;
(eq) Indebtedness outstanding on consisting of promissory notes issued by Holdings, the date hereofBorrower or any Subsidiary to current or former officers, managers, consultants, directors and employees, their respective estates, or incurred hereafter pursuant their spouses or former spouses to existing commitments finance the purchase or agreements, and, redemption of Management Equity issued in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereofcompliance with this Agreement;
(fr) Indebtedness consisting of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory cash management obligations, surety netting services, overdraft protection and appeal bonds and performance bonds and other obligations of a like nature that are similar arrangements incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;
(hs) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into consisting of the financing of insurance premiums or take-or-pay obligations contained in supply agreements, in each case incurred in the ordinary course of business;
(t) Indebtedness incurred in respect of letters of credit, bank guarantees, bankers’ acceptances or similar instruments issued or created in the ordinary course of business for hedging purposes in respect of workers’ compensation claims and not for speculative purposeshealth, disability, retiree or other employee benefits;
(iu) Seller Indebtedness owing to, or guaranteed by, a governmental agency incurred for Investment in, or the purchase, lease, development, construction, maintenance or improvement of Property (real or personal) or equipment that is used or useful in, a Similar Business in an aggregate principal amount not to exceed $50,000,000 at any one time outstanding outstanding; provided that such Indebtedness has a maturity date at the time such Indebtedness is incurred which is not exceeding earlier than the Latest Maturity Date; and
(v) unsecured Indebtedness of any Loan Party; provided that (i) $15,000,000 minus such Indebtedness matures after, and has no amortization in excess of 1% per year or other mandatory principal payments, repurchase, repayment or similar requirements prior to the Latest Maturity Date in effect at the time of incurrence with respect to the Term Loans (except as a result of a Fundamental Change so long as any rights of the holders thereof upon the occurrence of such Fundamental Change shall be subject to the satisfaction of the Termination Conditions) and (ii) the sum of before and after giving effect to such Indebtedness, (A) the amount Borrower shall be in Pro Forma Compliance with a Total Debt Leverage Ratio of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals not greater than 3.50:1.00 or extensions thereof not increasing the principal amount thereof and (B) the amount Total Debt Leverage Ratio for the Borrower measured on a Pro Forma Basis is not increased as a result of indebtedness attributable to sale and leaseback transactions permitted pursuant to such incurrence of Indebtedness. For the avoidance of doubt, this Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness 6.2 shall not prohibit, limit or otherwise permitted by the foregoing clauses (a) through (j) restrict any completion guarantees in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;20,000,000 at any one time outstanding made by the Borrower and its Subsidiaries with respect to any Construction Related Indebtedness permitted by Section 6.2(f).
Appears in 1 contract
Samples: Credit Agreement (Fortress Transportation & Infrastructure Investors LLC)
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower under the pursuant to any Loan DocumentsDocument;
(b) Indebtedness (i) of the Borrower to a Wholly Owned any Subsidiary, (ii) Indebtedness of a Domestic Wholly Owned any Subsidiary to any other Subsidiary and, to the extent permitted under Section 7.7(k), Indebtedness of any Subsidiary to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loanincluding, a Financing without limitation, Capital Lease or otherwiseObligations) secured by Liens permitted by Section 7.3(g) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) exceed $15,000,000 at any one time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12outstanding;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, hereof and listed on Schedule 7.2 7.2(d) and any refinancings, refundings, renewals or extensions thereof not increasing (without any increase in the principal amount thereof or any shortening of the maturity of any principal amount thereof);
(e) Guarantee Obligations made in the ordinary course of business by the Borrower or any of its Subsidiaries of obligations of the Borrower or any of its Subsidiaries;
(f) Indebtedness of a Person which becomes a Subsidiary after the date hereof Senior Notes in an aggregate principal amount at any time outstanding not exceeding (i) to exceed $15,000,000225 million and, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant subject to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and 7.8. any refinancings, refundings, renewals or extensions thereof not increasing (without any increase in the principal amount thereof or any shortening of the maturity of any principal amount thereof.);
(g) Receivables Facility Attributed Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, an aggregate principal amount not to exceed $5,000,000 in the aggregate at 70,000,000 any one time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into of the ordinary course Borrower incurred or assumed in connection with Permitted Acquisitions; provided that any such Indebtedness incurred by the Borrower, or assumed by the Borrower if incurred in conjunction with such Acquisition, shall not mature or have any scheduled amortization (in excess of business for hedging purposes and not for speculative purposes1% per annum) prior to April 30, 2012;
(i) Seller additional Indebtedness of the Borrower or any of its Subsidiaries in an aggregate principal amount (for the Borrower and all Subsidiaries) not to exceed $10,000,000 at any one time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12outstanding;
(j) Indebtedness (not constituting or supporting Funded Debt) consisting of contingent reimbursement obligations of the Borrower or any of its Subsidiaries under surety, indemnity, performance, release and appeal bonds and guaranties thereof and under letters of credit required in the form ordinary course of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by business or in connection with the foregoing clauses (a) through (j) in an aggregate principal amount at enforcement of rights or claims of the Borrower or any time outstanding of not to exceed $5,000,000its Subsidiaries;
Appears in 1 contract
Samples: Credit Agreement (Northwestern Corp)
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower under the any Loan DocumentsParty pursuant to any Loan Document;
(b) Indebtedness (i) of the Borrower to a Wholly Owned Subsidiary, (ii) any Subsidiary and of a Domestic any Wholly Owned Subsidiary Guarantor to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwisesecured by Liens permitted by Section 7.3(g) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) exceed $15,000,000 2,000,000 at any one time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12outstanding;
(d) Indebtedness of Capital Lease Obligations with respect to the Borrower and its Subsidiaries under the Convertible Subordinated Debentures Borrower's principal manufacturing facility and the 1997 Convertible Subordinated Notesequipment located therein in an aggregate principal amount not to exceed $6,600,000 at any one time outstanding and other Capital Lease Obligations in an aggregate principal amount not to exceed $5,000,000 at any one time outstanding;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, hereof and listed on Schedule 7.2 7.2(e) and any refinancings, refundings, renewals or extensions thereof not increasing (without any increase in the principal amount thereof);
(f) guarantees made in the ordinary course of business by the Borrower or any of its Subsidiaries of obligations of any Wholly Owned Subsidiary Guarantor;
(i) Indebtedness of the Borrower in respect of the Senior Subordinated Notes in an aggregate principal amount not to exceed $110,000,000 and (ii) Indebtedness of the Company in respect of the Company Zeros in an aggregate, unaccreted principal amount not to exceed $60,100,000;
(h) Indebtedness of the Company evidenced by the increase in the principal amount of the Company Zeros in connection with the payment in kind of interest thereon prior to the fifth anniversary of the Closing Date;
(i) Indebtedness of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding hereof; provided, that (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation -------- Person became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to of the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum such Indebtedness was not created in contemplation of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12such Person becoming a Subsidiary;
(j) Indebtedness in of the form Borrower and its Subsidiaries on account of the deferred purchase price for acquisitions of Capital Stock and assets permitted pursuant to Section 7.8;
(k) guarantees made by Subsidiaries of the Borrower on account of the Senior Subordinated Notes; provided, that such guarantees are subordinated -------- to the obligations of such Subsidiaries under the Guarantee Obligations permitted by Section 7.4and Collateral Agreement and the other Security Documents upon terms satisfactory to the Administrative Agent; and
(kl) additional Indebtedness not otherwise permitted by of the foregoing clauses (a) through (j) Borrower or any of its Subsidiaries in an aggregate principal amount at any time outstanding of (for the Borrower and all Subsidiaries) not to exceed $5,000,000;10,000,000 at any one time outstanding.
Appears in 1 contract
Samples: Credit Agreement (Details Inc)
Limitation on Indebtedness. CreateThe Borrowers shall not, and shall not cause or permit any Subsidiary to, directly or indirectly, create, incur, assume or assume, suffer to exist exist, or otherwise become or remain directly or indirectly liable with respect to, any Indebtedness, except:except (each of which shall be given independent effect):
(a) Indebtedness of the Borrower under the Loan DocumentsObligations;
(b) Indebtedness (i) consisting of the Borrower Contingent Obligations permitted pursuant to a Wholly Owned Subsidiary, (ii) of a Domestic Wholly Owned Subsidiary to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative AgentSection 8.8;
(c) Indebtedness of existing on the Borrower Original Closing Date or any Subsidiary incurred the Safeline Closing Date which is Debt to finance Be Repaid (which Indebtedness may not be outstanding beyond the acquisition Original Closing Date or construction of fixed the Safeline Closing Date, as the case may be) or capital assets (whether pursuant to a loan, a Financing Lease is set forth in Schedule 6.17 or otherwise) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12Schedule 6.17A;
(d) Indebtedness incurred in connection with Capital Leases to the extent permitted by subsection 8.1(j) and Indebtedness incurred in connection with the acquisition, construction or improvement of property to the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notesextent permitted by subsection 8.1(i);
(e) Indebtedness outstanding on the date hereof, of any Subsidiary to US Borrower or incurred hereafter pursuant to existing commitments or agreements, CH Borrower and, in each caseto the extent the credit extension creating such Indebtedness is permitted by subsection 8.4(c), listed on Schedule 7.2 and (e), (l), (p), (r), (u), (v) or (w) or (x), of any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereofSubsidiary to any other Subsidiary;
(f) Indebtedness of a Person which becomes a Subsidiary after US Borrower under the date hereof Senior Subordinated Notes in an aggregate principal amount at not to exceed U.S. $135.0 million, less any time outstanding not exceeding prepayments or repayments thereof (i) $15,000,000, minus (ii) including in connection with the sum of (A) transactions to occur on the amount of Indebtedness outstanding under clauses (c) Second Amendment and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuingRestatement Date), and any refinancings, refundings, renewals or extensions thereof not increasing guarantee of the principal amount thereof.Senior Subordinated Notes by any Domestic Subsidiary in accordance with the terms of the Senior Subordinated Note Documents as in effect on the Original Closing Date;
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred Foreign Subsidiaries in the ordinary course of business, an aggregate principal amount not to exceed $5,000,000 in the aggregate at any time outstandingoutstanding for all Foreign Subsidiaries (exclusive of any amount incurred pursuant to subsection 8.5(n) below) the Dollar Equivalent amount of U.S. $30.0 million (which amount shall be increased to (x) U.S. $50.0 million after the consummation of a Qualified Public Offering and (y) U.S. $60.0 million after the consummation of a Qualified Public Offering so long as the Debt to EBITDA Ratio as of the end of the most recently completed fiscal quarter is less than 2.5 to 1.0); provided, however, that not more than the Dollar Equivalent amount of U.S. $15.0 million (which amount shall be increased to (x) U.S. $25.0 million after the consummation of a Qualified Public Offering and (y) U.S. $30.0 million after the consummation of a Qualified Public Offering so long as the Debt to EBITDA Ratio as of the end of the most recently completed fiscal quarter is less than 3.5 to 1.0) in the aggregate may be incurred and outstanding at any time pursuant to any agreement that is for permanent funded debt;
(h) unsecured Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into not to exceed in the ordinary course aggregate at any time outstanding the Dollar Equivalent amount of business for hedging purposes and not for speculative purposesU.S. $10.0 million;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum arising from honoring a check, draft or similar instrument against insufficient funds; provided, however, that such Indebtedness is extinguished within five Business Days of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12its incurrence;
(j) Indebtedness in the form of Guarantee Obligations obligations under operating leases permitted by Section 7.48.3 or Section 8.20;
(k) the Safeline Seller Notes as in effect on the Safeline Closing Date;
(l) Indebtedness of a Person (other than Indebtedness of Safeline Limited and its Subsidiaries as of the Safeline Closing Date) existing at the time such Person became a Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with, or in contemplation of, such Person becoming a Subsidiary or the acquisition of such assets, not to exceed in the aggregate at any time outstanding the Dollar Equivalent amount of U.S. $10.0 million;
(m) unsecured Indebtedness incurred by US Borrower to former employees in connection with the purchase or redemption of stock of US Borrower or Holding not to exceed in aggregate amount outstanding the Dollar Equivalent amount of U.S. $2.50 million;
(n) Indebtedness of the Chinese Subsidiaries pursuant to local working capital facilities and other Indebtedness not to exceed in the aggregate at any time outstanding for all Chinese Subsidiaries the Dollar Equivalent amount of U.S. $15.0 million; and
(ko) any renewals, extensions, substitutions, refinancings or replacements (each, for purposes of this subsection (o), a "refinancing") of any Indebtedness not otherwise permitted by this Section 8.5, including any successive refinancings, so long as any such refinancing Indebtedness shall (w) not be on financial and other terms, in the foregoing clauses reasonable judgment of the Borrowers, that are more onerous than the Indebtedness being refinanced, (ax) through not have a stated maturity or Average Life that is shorter than the Indebtedness being refinanced, (jy) be at least as subordinate to the Obligations as the Indebtedness being refinanced (and unsecured if the refinanced Indebtedness is unsecured) and (z) be in an aggregate principal amount that does not exceed the principal amount so refinanced, plus the lesser of (I) the stated amount of any premium or other payment required to be paid in connection with such refinancing pursuant to the terms of the Indebtedness being refinanced and (II) the amount of premium or other payment actually paid at such time to refinance the Indebtedness, plus, in either case, the amount of reasonable expenses of the Borrowers or any time outstanding Subsidiary incurred in connection with such refinancing. If such Indebtedness is incurred to refinance Indebtedness denominated in a currency other than U.S. Dollars and such refinancing would cause a Dollar Equivalent restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such Dollar Equivalent restriction shall not be deemed to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed $5,000,000;the principal amount of such Indebtedness being refinanced, but the ability to make subsequent incurrences of Indebtedness subject to the applicable Dollar Equivalent restriction shall be determined as if the relevant currency exchange rate applied to any such previous refinancing was the rate in effect on the date of such refinancing.
Appears in 1 contract
Samples: Credit Agreement (Mt Investors Inc)
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower created under the any Loan DocumentsDocument;
(b) Unsecured Indebtedness of any Loan Party (i) of other than Capital Corp. and Wxxx Golf, unless the Borrower to a Wholly Owned Subsidiary, (ii) of a Domestic Wholly Owned Subsidiary to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount proceeds of such Indebtedness outstanding on are necessary for the date of this Agreement and (iv) organizational maintenance of any Foreign Subsidiary (other than Serviciossuch party) to the Borrower or any Subsidiary other Loan Party; provided, that in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that each case such Indebtedness referred to in clauses (iii) is evidenced by, and (iv) hereof, if subject to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to of, the Administrative AgentSubordinated Intercompany Note;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwisesecured by Liens permitted by Section 7.3(j) in an aggregate principal amount not exceeding as to less than 50% and not more than 100% of the Borrower and its Subsidiaries (i) $15,000,000 fair market value of the Aircraft determined at any the time outstanding minus (ii) of the amount incurrence of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12such Indebtedness;
(d) Indebtedness of (other than the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(eIndebtedness referred to in Section 7.2(f)) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, Amended and Restated Effective Date and listed on Schedule 7.2 7.2(d) and any refinancings, refundings, renewals or extensions thereof not increasing (without any increase in the principal amount thereof or any shortening of the maturity of any principal amount thereof);
(e) Unsecured Guarantee Obligations made in the ordinary course of business by any Loan Party of obligations of the Borrower or any other Loan Party (other than Capital Corp. and Wxxx Golf);
(f) (i) Indebtedness of a Person which becomes a Subsidiary after the date hereof Borrower and Capital Corp. created under the 2010 Notes Indenture in respect of the 2010 Notes in an aggregate principal amount at not to exceed $10,000,000 (reduced by any principal payments from time outstanding not exceeding (ito time made thereon) $15,000,000, minus and Guarantee Obligations of any Loan Party in respect thereto; (ii) Indebtedness of the sum Borrower and Capital Corp. created under the 2014 Notes Indenture in respect of the 2014 Notes and all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this subclause (Aii), in an aggregate amount not to exceed $1,700,000,000 plus all accrued interest on any such Indebtedness and the amount of all expenses and premiums (whether or not mandatory) incurred in connection with any such refinancing (reduced by any principal payments from time to time made on any such Indebtedness and Permitted Refinancing Indebtedness (other than any repayments from the proceeds of the issuance of Permitted Refinancing Indebtedness)) and Guarantee Obligations of any Loan Party in respect thereto; provided that the amount of Indebtedness outstanding under clauses this subclause (cii) may for a period not to exceed 60 days following the issuance of Permitted Refinancing Indebtedness exceed the limitation set forth prior to this proviso to the extent an amount equal to the excess thereof is used to redeem, repurchase, refund, refinance or replace Indebtedness that was permitted to be incurred under this subclause (ii)); and (iiii) Indebtedness of the Borrower and Capital Corp. created under the Senior Secured Notes Indenture in respect of the Senior Secured Notes and all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this Section 7.2 subclause (iii), in an aggregate amount not to exceed $500,000,000 plus all accrued interest on any such Indebtedness and (B) the amount of indebtedness attributable all expenses and premiums (whether or not mandatory) incurred in connection with any such refinancing (reduced by any principal payments from time to sale time made on any such Indebtedness and leaseback transactions permitted pursuant to Section 7.12, Permitted Refinancing Indebtedness (other than any repayments from the proceeds of the issuance of Permitted Refinancing Indebtedness)) and Guarantee Obligations of any Loan Party in respect thereto; provided that the amount of Indebtedness under this subclause (xiii) such may for a period not to exceed 60 days following the issuance of the Permitted Refinancing Indebtedness existed at exceed the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect limitation set forth prior to this proviso to the acquisition of such corporation by extent an amount equal to the Borrower no Default excess thereof is used to redeem, repurchase, refund, refinance or Event of Default shall have occurred and replace Indebtedness that was permitted to be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereofincurred under this subclause (iii).
(g) Indebtedness constituting deposits to secure the performance of bids(including, trade contracts (other than for borrowed money)without limitation, leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred Capital Lease Obligations) secured by Liens permitted by Section 7.3(s) in the ordinary course of business, an aggregate principal amount not to exceed $5,000,000 in 30,000,000 (or, from and after the aggregate Phase II Opening Date, $100,000,000) at any time outstanding;
(h) Indebtedness to any employees of Wynn Resorts or its Wholly Owned Subsidiaries (or their estates or trusts) incurred in connection with the repurchase, redemption or other acquisition or retirement for value of Capital Stock of Wynn Resorts permitted pursuant to Section 7.6(e); provided, that such Indebtedness outstanding at any time, when aggregated with the aggregate of all payments previously made under Interest Rate Protection Agreements Section 7.6(e), will not exceed $10,000,000;
(i) Subordinated Debt not to exceed an aggregate of $25,000,000 at any time outstanding; provided, that on and Hedge Agreements entered into after the Phase II Opening Date, the aggregate amount of Subordinated Debt incurred by the Borrower shall not be limited so long as the Borrower and its Subsidiaries shall be in pro forma compliance with each of the covenants set forth in Section 7.1 as of the most recent Quarterly Date of the Borrower after giving pro forma effect to any such Subordinated Debt as if such Subordinated Debt was incurred (and the repayment of Indebtedness required by the following proviso made) on the first day of the period being tested on such Quarterly Date under the covenants set forth in Section 7.1; and provided further, that in each such case the Net Cash Proceeds of such Subordinated Debt shall be applied within two Business Days of the receipt of such proceeds to the prepayment of the Obligations in accordance with Section 2.12(a);
(j) prior to the Phase I Final Completion Date (to the extent related to the development and construction of the Phase I Project) and prior to the Phase II Final Completion Date (to the extent related to the development and construction of the Phase II Project), Indebtedness in respect of performance bonds, guaranties, commercial or standby letters of credit (other than Letters of Credit), bankers’ acceptances or similar instruments issued by a Person other than Wynn Resorts or any Subsidiary of Wynn Resorts for the benefit of a trade creditor of any Loan Party, in an aggregate amount not to exceed $40,000,000 at any time outstanding so long as (i) such Indebtedness is incurred in the ordinary course of business for hedging purposes and not for speculative purposes(ii) the obligations of any Loan Party, as the case may be, supported by such performance bonds, guaranties, trade letters of credit, bankers’ acceptances or similar instruments (1) consist solely of payment obligations with respect to costs incurred in accordance with the Phase I Project Budget or the Phase II Project Budget, as the case may be, which would otherwise be permitted to be paid by the applicable Loan Party pursuant to the Disbursement Agreement, (2) are secured and (3) are secured solely by Liens permitted by Section 7.3(u);
(k) Indebtedness in respect of performance bonds, guaranties, commercial or standby letters of credit (other than Letters of Credit), bankers’ acceptances or similar instruments issued by a Person other than Wynn Resorts or any Affiliate of Wynn Resorts for the benefit of a trade creditor of any Loan Party, in an aggregate amount not to exceed $25,000,000 at any time outstanding so long as such Indebtedness (i) Seller is incurred in the ordinary course of business; (ii) does not consist of payment obligations with respect to Project Costs related to the Phase II Project; and (iii) if secured, are secured solely by Liens permitted by Section 7.3(v);
(l) Indebtedness, the Net Cash Proceeds of which are used for the development, construction and opening of an Additional Entertainment Facility and/or Retail Facility, in an aggregate principal amount (or original accreted value, as applicable) at any time not to exceed 66⅔% of the aggregate cost of such Additional Entertainment Facility and/or Retail Facility; provided that net cash proceeds have been received by the Borrower as a contribution to its equity capital in an amount equal to at least 33⅓% of the projected aggregate cost of such Additional Entertainment Facility and/or Retail Facility, which amount has been irrevocably committed substantially concurrent with the date of incurrence of such Indebtedness for use to develop, construct and open such Additional Entertainment Facility and/or Retail Facility; provided, further, the Borrower shall cause equity capital to be contributed to the Borrower such that 33⅓% of the costs related to the Additional Entertainment Facility and/or Retail Facility shall have been funded with equity capital;
(m) additional Indebtedness in an aggregate principal amount (for all Loan Parties) not to exceed $50,000,000 at any time outstanding outstanding; and
(n) Indebtedness of the Borrower and/or Capital Corp. in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any such Indebtedness, not exceeding to exceed the lesser of (x) $500,000,000, (y) the amount of such Indebtedness permitted to be incurred under the 2014 Notes Indenture, the 2020 Notes Indenture, the Additional 2020 Notes Indenture and the Senior Secured Notes Indenture by the Loan Parties on the date that such Indebtedness is initially issued or obtained in reliance on this clause (n) in accordance with clause (i) $15,000,000 minus below and (z) the principal amount of Indebtedness initially issued or obtained in reliance on this clause (n) in accordance with clause (i) below (in any such case, reduced by any principal payments from time to time made thereon) and Guarantee Obligations of any Loan Party with respect thereto (the “Senior Unsecured Debt”); provided that (i) the Senior Unsecured Debt shall initially be issued by the Borrower and/or Capital Corp. in a single issuance (and thereafter, except with respect to Permitted Refinancing Indebtedness related thereto, no other Indebtedness shall be issued in reliance on this clause (n)), (ii) the sum of (A) Senior Unsecured Debt shall have a final maturity date not earlier than the amount of Indebtedness outstanding under clauses (c) final maturity date of, and have a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the 2014 Notes, the 2020 Notes, the Additional 2020 Notes and the Senior Secured Notes and (fiii) subject to clause (ii) above, the terms and conditions of this Section 7.2the Senior Unsecured Debt (including the pricing, covenants and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness restrictions contained in the agreements governing the Senior Unsecured Debt) shall be in form and substance satisfactory to the Majority of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;Arrangers.
Appears in 1 contract
Samples: Credit Agreement (Wynn Resorts LTD)
Limitation on Indebtedness. Create, -------------------------- incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower under the any Loan DocumentsParty pursuant to any Loan Document;
(b) Indebtedness (i) of the Borrower to a Wholly Owned Subsidiary, (ii) any Subsidiary and of a Domestic any Wholly Owned Subsidiary Guarantor to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwisesecured by Liens permitted by Section 7.3(g) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) exceed $15,000,000 10,000,000 at any one time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12outstanding;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
any Person (eor any of such Person's Subsidiaries) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof;
(f) Indebtedness of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became Person becomes a Subsidiary and of the Borrower (or is merged into or consolidated with the Borrower or any of its Subsidiaries), but only to the extent that such Indebtedness was not created incurred in anticipation thereof connection with, as a result of or in contemplation of such Person becoming a Subsidiary of the Borrower (or being merged into or consolidated with the Borrower or any of its Subsidiaries); provided, however, that (1) in no event -------- ------- shall the aggregate amount of such Indebtedness outstanding at any time exceed $5,000,000 and (y2) immediately after giving effect to the acquisition of such corporation by acquired Person becomes a Subsidiary (or is merged into or consolidated with the Borrower or any of its Subsidiaries), no Default or Event of Default shall have occurred and be continuing, ;
(e) Indebtedness outstanding on the date hereof and listed on Schedule 7.2(e) and any refinancings, refundings, renewals or extensions thereof not increasing on financial and other terms no more onerous to the Borrower or any Subsidiary in the aggregate than the financial and other terms of such Indebtedness (without any increase in the principal amount thereof.);
(gf) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred guarantees made in the ordinary course of business, business by the Borrower or any of its Subsidiaries of obligations of any Wholly Owned Subsidiary Guarantor;
(i) Indebtedness of the Borrower in respect of the Senior Subordinated Notes in an aggregate principal amount not to exceed $5,000,000 70,000,000 and (ii) Guarantee Obligations of any Subsidiary Guarantor in respect of such Indebtedness; provided that such Guarantee Obligations are subordinated to the aggregate at any time outstanding-------- same extent as the obligations of the Borrower in respect of the Senior Subordinated Notes;
(h) Indebtedness under of the Borrower and the Subsidiaries pursuant to Interest Rate Protection Agreements and Hedge Agreements entered into with any Lender in order to fix the ordinary course of business for hedging purposes and not for speculative purposeseffective rate on the Loans;
(i) Seller Subordinated Indebtedness of the Borrower (other than in respect of the Senior Subordinated Notes); and
(j) additional Indebtedness of the Borrower or any of its Subsidiaries in an aggregate principal amount at any time outstanding not exceeding (ifor the Borrower and all Subsidiaries) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;5,000,000 at any one time outstanding.
Appears in 1 contract
Limitation on Indebtedness. Create, incur, assume or suffer to exist (in each case, to “Incur”) any IndebtednessIndebtedness or issue any Preferred Stock, except:
(a) Indebtedness of the Borrower under the any Loan DocumentsParty pursuant to any Loan Document;
(b) Indebtedness (i) of the Borrower Details to a Wholly Owned Subsidiary, (ii) any Subsidiary and of a Domestic any Wholly Owned Subsidiary Guarantor to the Borrower Details or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness secured by Liens permitted by Section 7.3(g) (“Purchase Money Indebtedness”) existing as of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loanRestatement Effective Date and set forth in Schedule 7.2(c), a Financing Lease or otherwise) in an aggregate principal amount and other Purchase Money Indebtedness, which other Purchase Money Indebtedness shall not exceeding as to the Borrower and its Subsidiaries (i) exceed $15,000,000 500,000 at any one time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12outstanding;
(d) Indebtedness Capital Lease Obligations existing as of the Borrower Restatement Effective Date and its Subsidiaries under the Convertible Subordinated Debentures set forth in Schedule 7.2(d), and the 1997 Convertible Subordinated Notesother Capital Lease Obligations, which other Capital Lease Obligations shall not exceed $500,000 at any one time outstanding;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, hereof and listed on Schedule 7.2 7.2(e) and any refinancings, refundings, renewals or extensions thereof not increasing (without any increase in the principal amount thereof);
(f) guarantees made in the ordinary course of business by Details or any of its Subsidiaries of obligations of any Wholly Owned Subsidiary Guarantor;
(g) Indebtedness of the Company in respect of the Senior Accreting Notes in an aggregate, unaccreted principal amount not to exceed $17,656,000;
(h) Indebtedness of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding hereof; provided, that (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation Person became a Subsidiary and was not created in anticipation thereof of the acquisition and (yii) immediately after giving effect to the acquisition such Indebtedness was not created in contemplation of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of Person becoming a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposesSubsidiary;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) of Details and its Subsidiaries on account of the sum deferred purchase price for acquisitions of (A) the amount of Indebtedness outstanding under clauses (c) Capital Stock and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions assets permitted pursuant to Section 7.127.8;
(j) Indebtedness in of Details or any of its Subsidiaries consisting of the form guarantee of Guarantee Obligations permitted by Section 7.4the obligation of DDi Corp. with respect to the Xxxxxxxx Note, which shall not exceed an aggregate principal amount (for Details and all Subsidiaries) equal to $500,000;
(k) additional Indebtedness of Details or any of its Subsidiaries, which shall not exceed an aggregate principal amount (for Details and all Subsidiaries) equal to $500,000 at any one time outstanding (other than such additional Indebtedness listed on Schedule 7.2(j) annexed hereto); and
(kl) unsecured Indebtedness not otherwise permitted by of the foregoing clauses (a) through (j) Company Incurred in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;accordance with Section 2.9(g).
Appears in 1 contract
Samples: Credit Agreement (Ddi Capital Corp/Dynamic Details Inc)
Limitation on Indebtedness. CreateThe Borrower will not, and will not suffer or permit any of its Subsidiaries to, create, incur, assume or issue, assume, suffer to exist exist, or otherwise become or remain directly or indirectly liable with respect to, any Indebtedness, except:
(a) Indebtedness of the Borrower under the Loan Documents;
(b) Indebtedness (i) of the Borrower to a Wholly Owned Subsidiary, (ii) of a Domestic Wholly Owned Subsidiary to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding existing on the date of this Agreement Effective Date and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, listed described on Schedule 7.2 8.05(a) and any refinancings, refundings, renewals or extensions thereof not increasing (without increasing, or shortening the maturity of, the principal amount thereofof such Indebtedness);
(fb) Indebtedness incurred pursuant to any Loan Document;
(c) Indebtedness of a Person which becomes a any Credit Party owing to the Borrower or any Wholly-Owned Subsidiary of the Borrower, provided that any such Indebtedness (i) is permitted to be advanced by the Borrower or such Wholly-Owned Subsidiary pursuant to the provisions of Section 8.10 and (ii) is not subordinated to any other Indebtedness of the obligor (other than the Obligations);
(d) so long as no Event of Default exists both before and after giving effect to the date hereof incurrence thereof, Indebtedness of the Borrower and/or its Subsidiaries secured by Liens permitted by Section 8.02(h);
(e) so long as no Event of Default exists both before and after giving effect to the incurrence thereof, (i) Permitted Borrower Unsecured Indebtedness in an aggregate principal amount not to exceed $5,000,000 outstanding at any time time, such maximum amount to be reduced by the aggregate principal amount of "Permitted Borrower Unsecured Indebtedness" (as such term is defined in the Nexstar Credit Agreement) of any Nexstar Entity outstanding not exceeding (i) $15,000,000at any time, minus and (ii) Permitted Seller Subordinated Indebtedness, in an aggregate principal amount not to exceed $15,000,000 outstanding at any time, such maximum permitted amount to be reduced by the sum aggregate principal amount of "Permitted Seller Subordinated Indebtedness" (as such term is defined in the Nexstar Credit Agreement) of any Nexstar Entity outstanding at such time, provided that prior to the incurrence of any such Indebtedness, the Borrower shall have delivered to the Administrative Agent (x) a certificate of the Borrower executed on its behalf by a Responsible Officer of the Borrower certifying (A) compliance with each of the amount financial covenants contained in Section 8.09 of the Nexstar Credit Agreement, based on financial projections of the Mission Entities, the Nexstar Borrower and its Subsidiaries attached to such certificate which have been prepared on a Pro Forma Basis for the period from the proposed date of the incurrence of such Indebtedness outstanding under clauses (c) and (i) to the Stated Maturity Date of this Section 7.2 the latest to mature of the Loans and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred exists or will exist both before and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing after giving effect to the principal amount thereof.
(g) incurrence of such Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (fy) a Pro Forma Compliance Certificate prepared as of this Section 7.2the date of the incurrence of such Indebtedness, and any refinancings, refundings, renewals or extensions thereof not increasing giving effect to the principal amount thereof and (B) the amount incurrence of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12such Indebtedness;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;
Appears in 1 contract
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower under the any Loan DocumentsParty pursuant to any Loan Document;
(b) Indebtedness (i) of the Borrower to a Wholly Owned Subsidiary, (ii) any Subsidiary and of a Domestic any Wholly Owned Subsidiary Guarantor to the Borrower or any other Subsidiary, (iii) of Servicios Subsidiary provided such Indebtedness is subordinated to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative AgentObligations;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loanincluding, a Financing without limitation, Capital Lease or otherwiseObligations) secured by Liens permitted by Section 7.3(g) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) exceed $15,000,000 5,000,000 at any one time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12outstanding;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, hereof and listed on Schedule 7.2 7.2(d) and any refinancings, refundings, renewals or extensions thereof not increasing (without any increase in the principal amount thereof or any shortening of the maturity of any principal amount thereof);
(e) Guarantee Obligations made in the ordinary course of business by the Borrower or any of its Subsidiaries of obligations of the Borrower or any Subsidiary Guarantor;
(f) Indebtedness in respect of a Person which becomes a Subsidiary the Senior Notes in an aggregate principal amount not to exceed $150,000,000;
(g) Indebtedness in respect of the Senior Subordinated Notes in an aggregate principal amount not to exceed $125,000,000 and any Indebtedness outstanding under the Existing Senior Subordinated Notes after giving effect to the date hereof transactions described in Section 5.1(b)(ii);
(h) Non-Recourse Debt in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,00050,000,000, minus at any time when the senior, unsecured, non credit-enhanced debt of the Borrower is rated lower than either B1 or BB- by Xxxxx’x or S&P, respectively, and (ii) $75,000,000, at any time when the sum senior, unsecured, non credit-enhanced debt of (A) the amount of Indebtedness outstanding under clauses (c) Borrower is rated at least as high as B1 and BB- by Xxxxx’x and S&P, respectively;
(i) of this Section 7.2 and (BIndebtedness listed on Schedule 7.2(i) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred without any increase in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) or any shortening of the maturity of any principal amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12thereof);
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4Parent Intercompany Loan and the Holdings Intercompany Loan; and
(k) additional Indebtedness not otherwise permitted by of the foregoing clauses (a) through (j) Borrower or any of its Restricted Subsidiaries in an aggregate principal amount at any time outstanding of (for the Borrower and all Restricted Subsidiaries) not to exceed $5,000,000;5,000,000 at any one time outstanding.
Appears in 1 contract
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower under the any Loan DocumentsParty pursuant to any Loan Document;
(b) Indebtedness (i) of the Borrower to a Wholly Owned Subsidiary, (ii) any Subsidiary and of a Domestic any Wholly Owned Subsidiary to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loanincluding, a Financing without limitation, Capital Lease or otherwiseObligations) secured by Liens permitted by Section 6.3(g) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) exceed $15,000,000 500,000 at any one time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12outstanding;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, hereof and listed on Schedule 7.2 6.2(d) and any refinancings, refundings, renewals or extensions thereof not increasing (without any increase in the principal amount thereof or any shortening of the maturity of any principal amount thereof);
(fe) Guarantee Obligations made in the ordinary course of business by the Borrower or any of its Subsidiaries of obligations of the Borrower or any Wholly Owned Subsidiary;
(i) Indebtedness of a Person the Borrower in respect of Additional Senior Debt in an aggregate amount which becomes a Subsidiary yields net proceeds to the Borrower of up to an amount equal to the sum of $200,000,000 plus 125% of the Net Cash Proceeds received by the Borrower after the date hereof in an aggregate principal amount at any time outstanding not exceeding from the sale of the Borrower's common stock and common stock equivalents (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided it being understood that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was sale of convertible debt securities shall not created in anticipation thereof constitute an issuance of common stock or common stock equivalents and (y) immediately after giving effect to the acquisition of such corporation issuance by the Borrower of its Capital Stock in connection with any Permitted Acquisition or to redeem Senior Discount Notes as permitted by Section 6.8(a)(ii) shall be deemed not to generate Net Cash Proceeds for purposes of the foregoing calculation) and (ii) Guarantee Obligations of any Subsidiary in respect of such Indebtedness; provided that no Default Subsidiary shall guarantee any Additional Senior Debt unless (A) such Indebtedness is secured to the extent permitted by Section 6.3(h), (B) such Subsidiary has executed and delivered to the Administrative Agent a Guarantee of the Obligations and (C) such guarantee of Additional Senior Debt provides for the release and termination thereof, without action by any party, upon Disposition of the relevant Subsidiary or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.substantially all of its assets; and
(g) Indebtedness constituting deposits to secure of the performance Borrower in respect of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;Subordinated Debt.
Appears in 1 contract
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower Borrowers under the Loan Documentsthis Agreement;
(b) Indebtedness (i) of the Borrower Company to a Wholly Owned Subsidiaryany Subsidiary and, (ii) to the extent permitted by Section 10.8, of a Domestic Wholly Owned any Subsidiary to the Borrower Company or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower or Company and any Subsidiary of its Subsidiaries incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) in an aggregate principal amount not exceeding as to the Borrower Company and its Subsidiaries (i) $15,000,000 40,000,000 at any one time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;outstanding; 90
(d) Indebtedness of the Canadian Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated NotesCanadian Operating Facility incurred for working capital purposes in an aggregate principal amount not exceeding C$35,000,000 at any one time outstanding;
(e) Indebtedness of the Company under the NationsBank Line of Credit incurred for working capital purposes in an aggregate principal amount not exceeding $25,000,000 at any one time outstanding;
(f) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, hereof and listed on Schedule 7.2 10.2(f) and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof(excluding any Indebtedness required to be repaid pursuant to Section 8.2(g));
(fg) Indebtedness of a Person corporation which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12hereof, provided that (xi) such Indebtedness indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (yii) immediately after giving effect to the acquisition of such corporation by the Borrower Company no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;
(h) Indebtedness of the Company of up to $400,000,000 under Interest Rate Protection Agreements the High Yield Notes, provided that the Borrowers and Hedge Agreements the General Administrative Agent shall have entered into a written supplement to this Agreement whereby the ordinary course Company agrees to maintain a senior leverage ratio of business for hedging purposes not greater than certain levels to be agreed by the Company and not for speculative purposesthe General Administrative Agent;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.410.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) additional Indebtedness of the Company not exceeding $50,000,000 in an aggregate principal amount at any one time outstanding of not to exceed $5,000,000;outstanding.
Appears in 1 contract
Samples: Credit Agreement (Laidlaw Environmental Services Inc)
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower under the any Loan DocumentsParty pursuant to any Loan Document;
(b) Indebtedness (i) of the Parent Borrower to a Wholly Owned Subsidiary, (ii) any Subsidiary and of a Domestic Wholly any Wholly-Owned Subsidiary Guarantor to the Parent Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness secured by Liens permitted by Section 7.3(g); provided that the Parent Borrower shall be in compliance, on a pro forma basis after giving effect to the incurrence of such Indebtedness, with the financial covenants contained in Section 7.1 recomputed as at the last day of the most recently ended fiscal quarter of the Parent Borrower or any Subsidiary and its Subsidiaries for which financial statements are available as if such Indebtedness had been incurred to finance on the acquisition or construction first day of fixed or capital assets each relevant period for testing such compliance;
(whether pursuant to a loan, a Financing d) Capital Lease or otherwise) Obligations in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) exceed $15,000,000 40,000,000 at any one time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notesoutstanding;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, Closing Date and listed on Schedule 7.2 7.2(e) and any refinancings, refundings, renewals or extensions thereof not increasing (without any increase in the principal amount thereof);
(f) guarantees made in the ordinary course of business by the Parent Borrower or any of its Subsidiaries of obligations of any Wholly-Owned Subsidiary Guarantor;
(g) Indebtedness of a Person which becomes a Subsidiary after the date hereof Parent Borrower or its Subsidiaries on account of industrial revenue bonds in an aggregate principal amount not to exceed $40,000,000 at any one time outstanding;
(h) guarantees made in the ordinary course of business by the Parent Borrower or any of its Subsidiaries of lease obligations of their customers in respect of equipment sold by the Parent Borrower or any of its Subsidiaries to a third party and then leased to such customer in an aggregate amount outstanding at any time outstanding not exceeding to exceed $30,000,000;
(i) Indebtedness in respect of letters of credit (not otherwise permitted under this Section 7.2) outstanding in the ordinary course of business in an aggregate face amount not to exceed $15,000,000, minus 50,000,000;
(j) Indebtedness of (i) any Subsidiary that is not a Loan Party to any other Subsidiary that is not a Loan Party and (ii) the sum any Subsidiary Guarantor to any Subsidiary that is not a Loan Party;
(k) Indebtedness of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a any Foreign Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect or Foreign Subsidiary Holdco to the acquisition of such corporation by the Parent Borrower or any other Subsidiary (so long as no Default or Event of Default shall have occurred and be continuingcontinuing at the time of the incurrence of such Indebtedness), provided that (x) the requirements of Section 6.9 are satisfied and (y) the aggregate principal amount of such Indebtedness at any time outstanding shall not exceed the greater of $150,000,000 or 10% of the Consolidated Total Tangible Assets (measured on the date of incurrence of the most recent of such Indebtedness), and provided, further, that any refinancingsIndebtedness permitted by this Section 7.2(k) shall be evidenced by a note or similar instrument and pledged in accordance with Section 6.9 and the Guarantee and Collateral Agreement;
(i) Permitted Unsecured Indebtedness; provided that (x) at the time of, refundingsand after giving effect to, renewals the incurrence of such Indebtedness, no Default or extensions thereof Event of Default shall have occurred and be continuing and (y) the Parent Borrower shall be in compliance, on a pro forma basis after giving effect to the incurrence of such Indebtedness, with the financial covenant contained in Section 7.1 (b), in each case recomputed as at the last day of the most recently ended fiscal quarter of the Parent Borrower and its Subsidiaries for which financial statements are available as if such Indebtedness had been incurred on the first day of such period and (ii) any guarantee by any Subsidiary in respect of any Permitted Unsecured Indebtedness; provided that (x) no Subsidiary that is not increasing the a Loan Party shall guarantee any Permitted Unsecured Indebtedness and (y) any such guarantee in respect of Permitted Unsecured Indebtedness shall be unsecured;
(m) Indebtedness incurred in connection with or in substitution or replacement of a Receivables Transfer Program in an aggregate principal amount thereof.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 100,000,000;
(i) Permitted Subordinated Indebtedness; provided that the Parent Borrower shall be in compliance, on a pro forma basis after giving effect to the incurrence of such Indebtedness, with the financial covenant contained in Section 7.1(b), recomputed on a pro forma basis as at the last day of the most recently ended fiscal quarter of the Parent Borrower and its Subsidiaries for which financial statements are available as if such Indebtedness had been incurred on the first day of such period and (ii) any guarantee by any Subsidiary in respect of any Permitted Subordinated Indebtedness; provided that (x) no Subsidiary that is not a Loan Party shall guarantee any Permitted Subordinated Indebtedness and (y) any such guarantee shall be subordinated to the prior payment in full of the Obligations on the same basis as the related Permitted Subordinated Indebtedness;
(o) unsecured Indebtedness not otherwise permitted by this Section 7.2 in an aggregate principal amount not to exceed $50,000,000; and
(p) (i) Obligations under or in respect of interest rate Swap Agreements up to an aggregate notional principal amount not to exceed at any time an amount equal to the Commitments of all the Lenders in the aggregate at any time outstanding;
such time, and (hii) Indebtedness Obligations owing under Interest Rate Protection Agreements and Hedge other Swap Agreements entered into the ordinary course of business for hedging purposes in order to manage existing or anticipated exchange rate or commodity price risks and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;
Appears in 1 contract
Samples: Credit Agreement (Conmed Corp)
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower Borrowers under the Loan Documentsthis Agreement;
(b) Indebtedness (i) of the Borrower Company to a Wholly Owned Subsidiaryany Subsidiary and, (ii) to the extent permitted by Section 10.8, of a Domestic Wholly Owned any Subsidiary to the Borrower Company or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower or Company and any Subsidiary of its Subsidiaries incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) in an aggregate principal amount not exceeding as to the Borrower Company and its Subsidiaries (i) $15,000,000 40,000,000 at any one time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12outstanding;
(d) Indebtedness of the Canadian Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated NotesCanadian Operating Facility incurred for working capital purposes in an aggregate principal amount not exceeding C$35,000,000 at any one time outstanding;
(e) Indebtedness of the Company under the NationsBank Line of Credit incurred for working capital purposes in an aggregate principal amount not exceeding $25,000,000 at any one time outstanding;
(f) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, hereof and listed on Schedule 7.2 10.2(f) and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof(excluding any Indebtedness required to be repaid pursuant to Section 8.2(g));
(fg) Indebtedness of a Person corporation which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12hereof, provided that (xi) such Indebtedness indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (yii) immediately after giving effect to the acquisition of such corporation by the Borrower Company no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;
(h) Indebtedness of the Company of up to $400,000,000 under Interest Rate Protection Agreements the High Yield Notes, provided that the Borrowers and Hedge Agreements the General Administrative Agent shall have entered into a written supplement to this Agreement whereby the ordinary course Company agrees to maintain a senior leverage ratio of business for hedging purposes not greater than certain levels to be agreed by the Company and not for speculative purposesthe General Administrative Agent;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.410.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) additional Indebtedness of the Company not exceeding $50,000,000 in an aggregate principal amount at any one time outstanding of not to exceed $5,000,000;outstanding.
Appears in 1 contract
Samples: Credit Agreement (Laidlaw Environmental Services Inc)
Limitation on Indebtedness. CreateExcept to the extent that the Majority Lenders otherwise consent, the Borrower will not create, issue, incur, assume assume, or become liable in respect of, and will not permit Holdings or SPC to, and Holdings will not, create, issue, incur, assume, become liable in respect of or suffer to exist exist, any Indebtedness, except:
(a) Indebtedness of the Borrower under the Loan Documentsany Credit Party pursuant to any Credit Document;
(b) Indebtedness (i) incurred for the purpose of, and proceeds of the Borrower to a Wholly Owned Subsidiarywhich are immediately applied toward, (ii) repayment in full in cash of a Domestic Wholly Owned Subsidiary to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative AgentObligations;
(c) Indebtedness of incurred prior to, and outstanding on, the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12Petition Date;
(d) unsecured Indebtedness of incurred on or after the Petition Date and listed on Schedule 6.1(d), provided that (i) after August 31, 2007, there shall be no Indebtedness outstanding owed by the Credit Parties or SPC to Sea Containers Treasury Ltd., and (ii) all Indebtedness owing from time to time by SPC to the Borrower and its Subsidiaries under shall be evidenced by the Convertible Subordinated Debentures and the 1997 Convertible Subordinated NotesSPC Note;
(e) Indebtedness unsecured trade payables more than 90 days past due in an aggregate amount outstanding on the date hereof, or incurred hereafter pursuant not to existing commitments or agreements, and, in each case, listed on Schedule 7.2 and exceed $1,000,000 at any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereoftime;
(f) in addition to the unsecured Indebtedness of a Person which becomes a Subsidiary after the date hereof SPC listed on Schedule 3.1(c)(v), unsecured Indebtedness of SPC to Sea Container British Isles Ltd. and to SC America Inc., in an aggregate principal amount outstanding not to exceed $1,000,000 at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.time; and
(g) Indebtedness constituting deposits of the Borrower, of the nature described in clause (b)(ii)(y) of the definition of “Indebtedness”, pursuant to secure the performance Cash Management Order and owing to Subsidiaries of bids, trade contracts (the Borrower other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;Holdings.
Appears in 1 contract
Samples: Secured Super Priority Debtor in Possession Credit Agreement (Sea Containers LTD /Ny/)
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower created under the any Loan DocumentsDocument;
(b) Unsecured Indebtedness of any Loan Party (i) of other than Capital Corp. and Xxxx Golf, unless the Borrower to a Wholly Owned Subsidiary, (ii) of a Domestic Wholly Owned Subsidiary to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount proceeds of such Indebtedness outstanding on are necessary for the date of this Agreement and (iv) organizational maintenance of any Foreign Subsidiary (other than Serviciossuch party) to the Borrower or any Subsidiary other Loan Party; provided, that in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that each case such Indebtedness referred to in clauses (iii) is evidenced by, and (iv) hereof, if subject to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to of, the Administrative AgentSubordinated Intercompany Note;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwisesecured by Liens permitted by Section 7.3(j) in an aggregate principal amount not exceeding as to less than 50% and not more than 100% of the Borrower and its Subsidiaries (i) $15,000,000 fair market value of the Aircraft determined at any the time outstanding minus (ii) of the amount incurrence of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12such Indebtedness;
(d) Indebtedness of (other than the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(eIndebtedness referred to in Section 7.2(f)) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, Amended and Restated Effective Date and listed on Schedule 7.2 7.2(d) and any refinancings, refundings, renewals or extensions thereof not increasing (without any increase in the principal amount thereof or any shortening of the maturity of any principal amount thereof);
(e) Unsecured Guarantee Obligations made in the ordinary course of business by any Loan Party of obligations of the Borrower or any other Loan Party (other than Capital Corp. and Xxxx Golf);
(f) (i) Indebtedness of a Person which becomes a Subsidiary after the date hereof Borrower and Capital Corp. created under the 2010 Notes Indenture in respect of the 2010 Notes in an aggregate principal amount at not to exceed $10,000,000 (reduced by any principal payments from time outstanding not exceeding (ito time made thereon) $15,000,000, minus and Guarantee Obligations of any Loan Party in respect thereto; (ii) Indebtedness of the sum Borrower and Capital Corp. created under the 2014 Notes Indenture in respect of the 2014 Notes and all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this subclause (Aii), in an aggregate principal amount not to exceed $1,700,000,000 plus all accrued interest on any such Indebtedness and the amount of all expenses and premiums (whether or not mandatory) incurred in connection with any such refinancing (reduced by any principal payments from time to time made on any such Indebtedness and Permitted Refinancing Indebtedness (other than any repayments from the proceeds of the issuance of Permitted Refinancing Indebtedness)) and Guarantee Obligations of any Loan Party in respect thereto; provided that the amount of Indebtedness outstanding under clauses this subclause (cii) may for a period not to exceed 60 days following the issuance of Permitted Refinancing Indebtedness exceed the limitation set forth prior to this proviso to the extent an amount equal to the excess thereof is used to redeem, repurchase, refund, refinance or replace Indebtedness that was permitted to be incurred under this subclause (ii)); and (iiii) Indebtedness of the Borrower and Capital Corp. created under the Senior Secured Notes Indenture in respect of the Senior Secured Notes and all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this Section 7.2 subclause (iii), in an aggregate principal amount not to exceed $500,000,000 plus all accrued interest on any such Indebtedness and (B) the amount of indebtedness attributable all expenses and premiums (whether or not mandatory) incurred in connection with any such refinancing (reduced by any principal payments from time to sale time made on any such Indebtedness and leaseback transactions permitted pursuant to Section 7.12, Permitted Refinancing Indebtedness (other than any repayments from the proceeds of the issuance of Permitted Refinancing Indebtedness)) and Guarantee Obligations of any Loan Party in respect thereto; provided that the amount of Indebtedness under this subclause (xiii) such may for a period not to exceed 60 days following the issuance of the Permitted Refinancing Indebtedness existed at exceed the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect limitation set forth prior to this proviso to the acquisition of such corporation by extent an amount equal to the Borrower no Default excess thereof is used to redeem, repurchase, refund, refinance or Event of Default shall have occurred and replace Indebtedness that was permitted to be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.incurred under this subclause (iii);
(g) Indebtedness constituting deposits to secure the performance of bids(including, trade contracts (other than for borrowed money)without limitation, leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred Capital Lease Obligations) secured by Liens permitted by Section 7.3(s) in the ordinary course of business, an aggregate principal amount not to exceed $5,000,000 in 30,000,000 (or, from and after the aggregate Phase II Opening Date, $100,000,000) at any time outstanding;
(h) Indebtedness to any employees of Wynn Resorts or its Wholly Owned Subsidiaries (or their estates or trusts) incurred in connection with the repurchase, redemption or other acquisition or retirement for value of Capital Stock of Wynn Resorts permitted pursuant to Section 7.6(e); provided, that such Indebtedness outstanding at any time, when aggregated with the aggregate of all payments previously made under Interest Rate Protection Agreements Section 7.6(e), will not exceed $10,000,000;
(i) Subordinated Debt not to exceed an aggregate of $25,000,000 at any time outstanding; provided, that on and Hedge Agreements entered into after the Phase II Opening Date, the aggregate amount of Subordinated Debt incurred by the Borrower shall not be limited so long as the Borrower and its Subsidiaries shall be in pro forma compliance with each of the covenants set forth in Section 7.1 as of the most recent Quarterly Date of the Borrower after giving pro forma effect to any such Subordinated Debt as if such Subordinated Debt was incurred (and the repayment of Indebtedness required by the following proviso made) on the first day of the period being tested on such Quarterly Date under the covenants set forth in Section 7.1; and provided further, that in each such case the Net Cash Proceeds of such Subordinated Debt shall be applied within two Business Days of the receipt of such proceeds to the prepayment of the Obligations in accordance with Section 2.12(a);
(j) prior to the Phase I Final Completion Date (to the extent related to the development and construction of the Phase I Project) and prior to the Phase II Final Completion Date (to the extent related to the development and construction of the Phase II Project), Indebtedness in respect of performance bonds, guaranties, commercial or standby letters of credit (other than Letters of Credit), bankers’ acceptances or similar instruments issued by a Person other than Wynn Resorts or any Subsidiary of Wynn Resorts for the benefit of a trade creditor of any Loan Party, in an aggregate amount not to exceed $40,000,000 at any time outstanding so long as (i) such Indebtedness is incurred in the ordinary course of business for hedging purposes and not for speculative purposes(ii) the obligations of any Loan Party, as the case may be, supported by such performance bonds, guaranties, trade letters of credit, bankers’ acceptances or similar instruments (1) consist solely of payment obligations with respect to costs incurred in accordance with the Phase I Project Budget or the Phase II Project Budget, as the case may be, which would otherwise be permitted to be paid by the applicable Loan Party pursuant to the Disbursement Agreement, (2) are secured and (3) are secured solely by Liens permitted by Section 7.3(u);
(k) Indebtedness in respect of performance bonds, guaranties, commercial or standby letters of credit (other than Letters of Credit), bankers’ acceptances or similar instruments issued by a Person other than Wynn Resorts or any Affiliate of Wynn Resorts for the benefit of a trade creditor of any Loan Party, in an aggregate amount not to exceed $25,000,000 at any time outstanding so long as such Indebtedness (i) Seller is incurred in the ordinary course of business; (ii) does not consist of payment obligations with respect to Project Costs related to the Phase II Project; and (iii) if secured, are secured solely by Liens permitted by Section 7.3(v);
(l) Indebtedness, the Net Cash Proceeds of which are used for the development, construction and opening of an Additional Entertainment Facility and/or Retail Facility, in an aggregate principal amount (or original accreted value, as applicable) at any time not to exceed 66 2/3% of the aggregate cost of such Additional Entertainment Facility and/or Retail Facility; provided that net cash proceeds have been received by the Borrower as a contribution to its equity capital in an amount equal to at least 33 1/3% of the projected aggregate cost of such Additional Entertainment Facility and/or Retail Facility, which amount has been irrevocably committed substantially concurrent with the date of incurrence of such Indebtedness for use to develop, construct and open such Additional Entertainment Facility and/or Retail Facility; provided, further, the Borrower shall cause equity capital to be contributed to the Borrower such that 33 1/3% of the costs related to the Additional Entertainment Facility and/or Retail Facility shall have been funded with equity capital;
(m) additional Indebtedness in an aggregate principal amount (for all Loan Parties) not to exceed $50,000,000 at any time outstanding outstanding;
(n) Indebtedness of the Borrower and/or Capital Corp. in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any such Indebtedness, not exceeding to exceed the lesser of (x) $500,000,000, (y) the amount of such Indebtedness permitted to be incurred under the 2014 Notes Indenture, each Additional First Lien Mortgage Notes Indenture, the 2020 Notes Indenture, the Additional 2020 Notes Indenture and the Senior Secured Notes Indenture by the Loan Parties on the date that such Indebtedness is initially issued or obtained in reliance on this clause (n) in accordance with clause (i) $15,000,000 minus below and (z) the principal amount of Indebtedness initially issued or obtained in reliance on this clause (n) in accordance with clause (i) below (in any such case, reduced by any principal payments from time to time made thereon) and Guarantee Obligations of any Loan Party with respect thereto (the “Senior Unsecured Debt”); provided that (i) the Senior Unsecured Debt shall initially be issued by the Borrower and/or Capital Corp. in a single issuance (and thereafter, except with respect to Permitted Refinancing Indebtedness related thereto, no other Indebtedness shall be issued in reliance on this clause (n)), (ii) the sum of (A) Senior Unsecured Debt shall have a final maturity date not earlier than the amount of Indebtedness outstanding under clauses (c) final maturity date of, and have a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the 2014 Notes, the Additional First Lien Mortgage Notes, the 2020 Notes, the Additional 2020 Notes and the Senior Secured Notes and (fiii) subject to clause (ii) above, the terms and conditions of this Section 7.2the Senior Unsecured Debt (including the pricing, covenants and any refinancings, refundings, renewals or extensions thereof not increasing restrictions contained in the principal amount thereof agreements governing the Senior Unsecured Debt) shall be in form and (B) substance satisfactory to the amount Majority of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;the Arrangers; and
(jo) Indebtedness of the Borrower and Capital Corp. in the form of Guarantee Obligations permitted by Section 7.4; and
first mortgage notes or senior secured notes issued under the March 2012 Notes Indenture or under another indenture dated after the Eighth Amendment Effective Date (kcollectively, the “Additional First Lien Mortgage Notes”) and all Permitted Refinancing Indebtedness not otherwise permitted by the foregoing clauses incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (a) through (j) o), in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;the Maximum Additional First Lien Mortgage Notes Amount plus all accrued interest on any such Indebtedness and the amount of all expenses and premiums (whether or not mandatory) incurred in connection with any such refinancing (reduced by any principal payments from time to time made on any such Indebtedness and Permitted Refinancing Indebtedness (other than any repayments from the proceeds of the issuance of Permitted Refinancing Indebtedness)) and Guarantee Obligations of any Loan Party in respect thereto; provided that the amount of Indebtedness under this clause (o) may for a period not to exceed 60 days following the issuance of Permitted Refinancing Indebtedness exceed the limitation set forth prior to this proviso to the extent an amount equal to the excess thereof is used to redeem, repurchase, refund, refinance or replace Indebtedness that was permitted to be incurred under this clause (o); provided, further, that (I) each issuance of Additional First Lien Mortgage Notes may only be made subject to satisfaction of the Additional First Lien Mortgage Notes Issuance Conditions on the date of such issuance, (II) the Additional First Lien Mortgage Notes shall have a final maturity date not earlier than Scheduled Revolving Credit 1 Termination Date and shall not provide for any amortization, payments, redemptions, defeasances or sinking fund payments with respect to with respect to the principal amount of such Indebtedness prior to the Scheduled Revolving Credit 1 Termination Date, and (III) upon the initial issuance of Additional First Lien Mortgage Notes, the Borrower shall repay in full all outstanding Term B Loans (including accrued interest and all amounts due thereon).
Appears in 1 contract
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower under the any Loan DocumentsParty pursuant to any Loan Document;
(b) Indebtedness of (i) of the Borrower to a Wholly Owned Subsidiary, any Subsidiary and (ii) of a Domestic any Wholly Owned Subsidiary Guarantor to the Borrower or any other Subsidiary; provided that, (iii) the aggregate amount of Servicios to the Borrower or any Indebtedness of any Subsidiary in an aggregate principal amount at that is not a Loan Party to any time outstanding Loan Party shall not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any one time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agentoutstanding;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loanincluding, a Financing without limitation, Capital Lease or otherwiseObligations) secured by Liens permitted by Section 7.3(h) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) exceed $15,000,000 5,000,000 at any one time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12outstanding;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, hereof and listed on Schedule 7.2 7.2(d) and any refinancings, refundings, renewals or extensions thereof not increasing (without any increase in the principal amount thereof (other than by the refinancing costs thereof including premiums and make whole payments) or any shortening of the maturity of any principal amount thereof);
(e) Guarantee Obligations made in the ordinary course of business by the Borrower or any of its Subsidiaries of obligations of the Borrower or any Subsidiary Guarantor;
(f) unsecured Recourse Indebtedness of a Person the REIT and its Subsidiaries which (i) shall mature at least one year after the Revolving Credit Termination Date and (ii) shall not exceed on any date of determination, an amount equal to 10% of Total Asset Value on such date at any one time outstanding;
(g) Non-Recourse Indebtedness of any Subsidiary that becomes a Subsidiary of the Borrower (other than a Borrowing Base Group Member) after the date hereof in an aggregate principal amount accordance with Section 7.7(g), which exists at any the time outstanding not exceeding (i) $15,000,000such Person becomes a Subsidiary; provided that, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time of such corporation became a Subsidiary acquisition and was not created in anticipation thereof connection therewith or in contemplation thereof, and (y) the Borrower shall deliver to the Administrative Agent a pro forma Compliance Certificate (i) certifying that, immediately prior to and after giving effect to the acquisition of such corporation by the Borrower additional Indebtedness, no Default or Event of Default shall have occurred exist and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred in the ordinary course of business, not to exceed $5,000,000 in the aggregate at any time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) containing all information and (f) of this Section 7.2calculations necessary, and any refinancingstaking into consideration such additional Indebtedness, refundings, renewals or extensions thereof not increasing for determining pro forma compliance with the principal amount thereof and (B) the amount provisions of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.127.1 hereof;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;
Appears in 1 contract
Limitation on Indebtedness. Create, incurIncur, assume or suffer to exist any Indebtedness, Indebtedness of any Material Subsidiary except:
(a) Indebtedness of in existence on the Borrower under Closing Date, or required to be incurred pursuant to a contractual obligation in existence on the Loan DocumentsClosing Date, but not any extensions or renewals thereof, unless effected on substantially the same terms or on terms not materially more adverse to the Lenders;
(b) purchase money Indebtedness (iincluding Capital Leases) of the Borrower to a Wholly Owned Subsidiary, provided that such Indebtedness is secured by Liens permitted by Section 6.3(c);
(iic) of a Domestic Wholly Owned Guaranty Obligations;
(d) Indebtedness owing by any Material Subsidiary to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness of any Material Subsidiary issued and outstanding on prior to the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, listed on Schedule 7.2 and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof;
(f) Indebtedness of a which such Person which becomes a Subsidiary after the date hereof in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created of the Borrower (other than Indebtedness issued in connection with, or in anticipation thereof of, such Person becoming a Subsidiary of the Borrower); provided that immediately prior and (y) immediately on a Pro Forma Basis after giving effect to to, such Person becoming a Subsidiary of the acquisition of such corporation by the Borrower Borrower, no Default or Event of Default shall have occurred occur or then be continuing and be continuingthe aggregate principal amount of such Indebtedness, when added to the aggregate outstanding principal amount of Indebtedness permitted by paragraphs (f) and (g) below, shall not exceed the greater of 15% of Consolidated Net Worth and $200,000,000;
(f) any refinancingsrenewal, refundingsextension or modification of Indebtedness under paragraph (e) above so long (i) as such renewal, renewals extension or extensions thereof modification is effected on substantially the same terms or on terms which, in the aggregate, are not increasing materially more adverse to the Lenders and (ii) the principal amount thereof.of such Indebtedness is not increased;
(g) other Indebtedness constituting deposits of any Material Subsidiary in an aggregate principal amount which, when added to secure the performance aggregate outstanding principal amount of bidsIndebtedness permitted by paragraphs (e) and (f) above, trade contracts does not exceed the greater of 15% of Consolidated Net Worth and $200,000,000;
(other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred h) Securitization Indebtedness;
(i) derivatives transactions entered into in the ordinary course of business, business pursuant to hedging programs;
(j) Indebtedness under the Landal Facilities in an aggregate principal amount not to exceed $5,000,000 in the aggregate at any time outstanding300,000,000;
(hk) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into the ordinary course Trendwest Facilities in an aggregate principal amount not to exceed $400,000,000, provided that the amount of business for hedging purposes and not for speculative purposesIndebtedness permitted under this Section 6.1(k) shall be reduced in an equal amount by the amount of Securitization Indebtedness incurred by Trendwest or any of its Subsidiaries;
(il) Seller Non-Recourse Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) to exceed $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4100,000,000; and
(km) Indebtedness not otherwise permitted by of any Loan Party pursuant to any Fundamental Document. If the foregoing Material Subsidiary’s action or event meets the criteria of more than one of the types of Indebtedness described in the clauses above, the Borrower in its sole discretion may classify such action or event in one or more clauses (a) through (j) including in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;part under one such clause and in part under another such clause).
Appears in 1 contract
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower under the any Loan DocumentsParty pursuant to any Loan Document;
(b) Indebtedness (i) of the Borrower to a Wholly Owned Subsidiary, (ii) any Subsidiary and of a Domestic Wholly Owned any Subsidiary Guarantor to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not to exceed $5,000,000 in excess of the amount of such Indebtedness outstanding on the date of this Agreement and (iv) of any Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced by a promissory note or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower (including, without limitation, Capital Lease Obligations) secured by Liens permitted by Section 7.3(g) or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise7.3(h) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) exceed $15,000,000 5,000,000 at any one time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12outstanding;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, and, in each case, hereof and listed on Schedule 7.2 7.2(d) and any refinancings, refundings, renewals or extensions thereof not increasing (without any increase in the principal amount thereof or any shortening of the maturity of any principal amount thereof);
(e) Guarantee Obligations made in the ordinary course of business by the Borrower or any of its Subsidiaries of obligations of the Borrower or any Subsidiary Guarantor;
(f) Indebtedness of a Person which becomes a Subsidiary after the date hereof Borrower in respect of the Senior Subordinated Notes in an aggregate principal amount at any time outstanding not exceeding (i) to exceed $15,000,000, minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (i) of this Section 7.2 and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.250,000,000;
(g) additional Indebtedness constituting deposits of the Borrower or any of its Subsidiaries, on terms and conditions reasonably satisfactory to secure the performance Agents, issued to a seller of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations the stock or assets of a like nature radio broadcast station in connection with any Permitted Acquisition, PROVIDED that are incurred in the ordinary course aggregate principal amount (for the Borrower and all Subsidiaries) of business, such seller financing shall not to exceed $5,000,000 in the aggregate 10,000,000 at any one time outstanding;; and
(h) Indebtedness under Interest Rate Protection Agreements of the Borrower in respect of shares of Preferred Stock issued after the date hereof on terms and Hedge Agreements entered into conditions reasonably satisfactory to the ordinary course of business for hedging purposes and not for speculative purposes;
(i) Seller Indebtedness in an aggregate principal amount at any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount of Indebtedness outstanding under clauses (c) and (f) of this Section 7.2, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof and (B) the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(j) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000;Agents.
Appears in 1 contract
Samples: Credit Agreement (Cumulus Media Inc)
Limitation on Indebtedness. Create(a) The Issuer will not, incurand will not permit any of the Restricted Subsidiaries to, assume or suffer to exist Incur any Indebtedness (including Acquired Indebtedness); provided, excepthowever:
(a1) any Restricted Subsidiary may Incur Indebtedness (including Acquired Indebtedness) if on the date of such Incurrence and after giving effect thereto on a pro forma basis (A) the Consolidated Net Leverage Ratio for the Restricted Subsidiaries would not exceed 4.00 to 1.00 and (B) the Consolidated Net Leverage Ratio would not exceed 5.00 to 1.00; and
(2) the Issuer may Incur Pari Passu Indebtedness (including Acquired Indebtedness constituting Pari Passu Indebtedness) if on the date of such Incurrence and after giving effect thereto on a pro forma basis the Consolidated Net Leverage Ratio for the Issuer and the Restricted Subsidiaries would not exceed 5.00 to 1.00.
(b) Section 4.09(a) will not prohibit the Incurrence of the following Indebtedness:
(1) Indebtedness of the Borrower under the Loan Documents;
(b) Indebtedness (i) Issuer and any of the Borrower to a Wholly Owned Subsidiary, (ii) of a Domestic Wholly Owned Subsidiary to Restricted Subsidiaries under Credit Facilities in the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any one time outstanding not to exceed $5,000,000 in excess (A) an amount equal to the greater of (i)(a) £3,500.0 million plus (b) the amount of such Indebtedness outstanding on the date any Credit Facilities incurred under Section 4.09(a) or any other provision of this Agreement Section 4.09(b) to acquire any property, other assets or shares of Capital Stock of a Person and (ivii) 5.0% of Total Assets, plus (B) any accrual or accretion of interest that increases the principal amount of Indebtedness under Credit Facilities, plus (C) in the case of any Foreign refinancing of any Indebtedness permitted under this Section 4.09(b)(1) or any portion thereof, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness of the Issuer owing to and held by any Restricted Subsidiary (other than Serviciosa Receivables Entity) or Indebtedness of a Restricted Subsidiary owing to and held by the Borrower Issuer or any other Restricted Subsidiary (other than a Receivables Entity); provided, however, that:
(A) any subsequent issuance or transfer of Capital Stock or any other event which results in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clauses (iii) and (iv) hereof, if to the Borrower or any Domestic Subsidiary, is evidenced being beneficially held by a promissory note Person other than the Issuer or promissory notes which has or have been pledged to the Collateral Agent on terms and conditions reasonably satisfactory to the Administrative Agent;a Restricted Subsidiary (other than a Receivables Entity); and
(cB) any sale or other transfer of any such Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition or construction of fixed or capital assets (whether pursuant to a loanPerson other than the Issuer or a Restricted Subsidiary (other than a Receivables Entity), a Financing Lease or otherwise) in an aggregate principal amount not exceeding as to the Borrower and its Subsidiaries (i) $15,000,000 at any time outstanding minus (ii) the amount of Indebtedness outstanding under clauses (f) and (i) of this Section 7.2 and the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12;
(d) Indebtedness of the Borrower and its Subsidiaries under the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes;
(e) Indebtedness outstanding on the date hereof, or incurred hereafter pursuant to existing commitments or agreements, andshall be deemed, in each case, listed to constitute an Incurrence of such Indebtedness by the Issuer or such Restricted Subsidiary, as the case may be;
(3) (A) Indebtedness of the Issuer represented by the Notes (other than any Additional Notes issued after the Issue Date) and (B) Indebtedness of the Guarantors represented by the Note Guarantees;
(4) any Indebtedness (other than the Indebtedness described in clauses (1), (2) and (3) of this Section 4.09(b)) outstanding on Schedule 7.2 the Issue Date;
(5) any Refinancing Indebtedness Incurred in respect of any Indebtedness described in clauses (3), (4), (5), (6), (8), (15) or (19) of this Section 4.09(b) or Incurred pursuant to Section 4.09(a);
(6) Indebtedness of the Issuer or a Restricted Subsidiary (A) Incurred and outstanding on the date on which such Restricted Subsidiary was acquired by the Issuer or 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 Issuer or any Restricted Subsidiary; (B) Incurred to provide all or a 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 Issuer or a Restricted Subsidiary; or (C) Incurred and outstanding on the date on which such Restricted Subsidiary was acquired by the Issuer or 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 Issuer or any Restricted Subsidiary (other than Indebtedness Incurred in contemplation of 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); provided, however, that with respect to clauses (A) and (B) of this Section 4.09(b)(6) only, immediately following the consummation of the acquisition of such Restricted Subsidiary by the Issuer or such other transaction, (i) the Issuer and Restricted Subsidiaries would have been able to Incur £1.00 of additional Indebtedness pursuant to Section 4.09(a) after giving pro forma effect to the relevant acquisition or other transaction and the Incurrence of such Indebtedness pursuant to this Section 4.09(b)(6) or (ii) the Consolidated Net Leverage Ratio would not be greater than immediately prior to such acquisition or such other transaction;
(7) Indebtedness under Currency Agreements, Commodity Agreements and Interest Rate Agreements entered into for bona fide hedging purposes of the Issuer and the Restricted Subsidiaries and not for speculative purposes (as determined in good faith by the Board of Directors or senior management of the Issuer);
(8) Indebtedness consisting of (A) mortgage financings, Purchase Money Obligations or other financings, Incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation or improvement of property (real or personal), plant, equipment or other assets used or useful in the business of the Issuer or such Restricted Subsidiary or (B) Indebtedness otherwise Incurred to finance the purchase, lease, rental or cost of design, development, construction, installation or improvement of property (real or personal), plant, equipment or other assets used or useful in the business of the Issuer or such Restricted Subsidiary, whether through the direct purchase of assets or the Capital Stock of any Person owning such assets, and any refinancingsRefinancing Indebtedness which refinances, refundingsreplaces or refunds such Indebtedness, renewals or extensions thereof not increasing in an aggregate outstanding principal amount which, when taken together with the principal amount thereof;
of all other Indebtedness Incurred pursuant to this clause (f8) will not exceed the greater of (i) Indebtedness £200.0 million and (ii) 3.0% of a Person which becomes a Subsidiary after the date hereof in an aggregate principal amount Total Assets at any time outstanding not exceeding so long as such Indebtedness exists on the date of, or commissioning of, or contracting for, such purchase, design, development, construction, installation or improvement, or is created within 270 days thereafter;
(i9) $15,000,000, minus (ii) the sum Indebtedness in respect of (A) workers’ compensation claims, self- insurance obligations, performance, bid, indemnity, surety, judgment, appeal, advance payment, customs, VAT or other tax or other guarantees or other similar bonds, instruments or obligations and completion guarantees and warranties provided by the amount Issuer or a Restricted Subsidiary or relating to liabilities, obligations or guarantees Incurred in the ordinary course of Indebtedness outstanding under clauses (c) and (i) business or in respect of this Section 7.2 and any government requirement, (B) the amount letters of indebtedness attributable credit, bankers’ acceptances, guarantees or other similar instruments or obligations issued or relating to sale and leaseback transactions permitted pursuant to Section 7.12, provided that (x) such Indebtedness existed at the time such corporation became a Subsidiary and was not created in anticipation thereof and (y) immediately after giving effect to the acquisition of such corporation by the Borrower no Default liabilities or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof not increasing the principal amount thereof.
(g) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds and performance bonds and other obligations of a like nature that are incurred Incurred in the ordinary course of business, not to exceed $5,000,000 including letters of credit or similar instruments in respect of self-insurance and workers compensation obligations, (C) the aggregate at any time outstanding;
(h) Indebtedness under Interest Rate Protection Agreements and Hedge Agreements entered into financing of insurance premiums in the ordinary course of business for hedging purposes and not for speculative purposes(D) any customary cash management, cash pooling or netting or setting off arrangements in the ordinary course of business;
(i10) Seller Indebtedness arising from agreements of the Issuer or a Restricted Subsidiary providing for indemnification, obligations in an respect of earn-outs or adjustment of purchase price or similar obligations, in each case, Incurred or assumed in connection with the disposition of any business, assets or Capital Stock of a Restricted Subsidiary, provided that the maximum aggregate principal amount liability in respect of all such Indebtedness shall at no time exceed the gross proceeds (including the fair market value of non-cash proceeds) actually received by the Issuer and the Restricted Subsidiaries in connection with such disposition;
(11) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided, however, that such Indebtedness is extinguished within thirty Business Days of Incurrence;
(12) guarantees by the Issuer or any time outstanding not exceeding (i) $15,000,000 minus (ii) the sum of (A) the amount Restricted Subsidiary of Indebtedness outstanding under clauses or any other obligation or liability of the Issuer or any Restricted Subsidiary (c) and (f) other than of any Indebtedness Incurred by the Issuer or Restricted Subsidiary in violation of this Section 7.24.09); provided, and however, that if the Indebtedness being guaranteed is subordinated in right of payment to the Notes or any refinancingsNote Guarantee, refundings, renewals or extensions thereof not increasing then such guarantee shall be subordinated substantially to the principal amount thereof and (B) same extent as the amount of indebtedness attributable to sale and leaseback transactions permitted pursuant to Section 7.12relevant Indebtedness guaranteed;
(j13) Indebtedness in the form of Guarantee Obligations permitted by Section 7.4; and
(k) Indebtedness not otherwise permitted by the foregoing clauses (a) through (j) in an aggregate principal amount at any time outstanding of not to exceed $5,000,000[Reserved];
Appears in 1 contract
Samples: Indenture (Liberty Global PLC)
