Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except: (a) the Obligations (excluding Specified Hedge Obligations permitted pursuant to Section 10.1(b)); (b) Indebtedness incurred in connection with a Hedging Agreement which is entered into for interest rate, foreign currency, commodity or other business purposes and not for speculative purposes, with a counterparty reasonably satisfactory to the Administrative Agent; provided, that any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to the Administrative Agent; (c) Indebtedness existing on the Closing Date and not otherwise permitted under this Section, as set forth on Schedule 6.1(t), and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof; (d) Indebtedness of the Borrower and its Subsidiaries incurred in connection with Capital Leases in an aggregate amount, together with the aggregate amount of all purchase money Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (e) below, not to exceed $20,000,000 on any date of determination; (e) purchase money Indebtedness of the Borrower and its Subsidiaries with respect to the purchase of Equipment in an aggregate amount, together with the aggregate amount of all Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (d) above, not to exceed $20,000,000 on any date of determination; (f) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Parties; (g) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a) through (e) of this Section; provided that neither the Borrower nor any Guarantor shall be permitted to incur Guaranty Obligations under this subsection (g) with respect to Indebtedness of any Subsidiary that is not a Guarantor ; (h) Indebtedness owed by (i) any Guarantor to the Borrower, (ii) the Borrower to any Guarantor, (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor to the Borrower or any Guarantor in an amount not to exceed $500,000, or (vi) the Borrower or any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,000; (i) Indebtedness incurred pursuant to the issuance of Qualified Senior Unsecured Notes; provided that in the case of each issuance of such Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Indebtedness; and (j) unsecured Subordinated Indebtedness; provided that in the case of each issuance of such Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Subordinated Indebtedness; provided, that no agreement or instrument with respect to Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower to make any payment to the Borrower or any Guarantor (in the form of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrower to pay the Obligations.
Appears in 1 contract
Samples: Credit Agreement (Lmi Aerospace Inc)
Limitations on Indebtedness. CreateIt will not nor will it permit any of the Subsidiaries to, contract, create, incur, assume or suffer permit to exist any Indebtedness Indebtedness, except:
(ai) Indebtedness arising under this Agreement and the Obligations Notes and the other Credit Documents and under the Credit Agreement and the other Credit Documents (excluding Specified Hedge Obligations permitted pursuant to Section 10.1(b)as defined in the Credit Agreement);
(bii) Indebtedness incurred of the Company and its Subsidiaries set forth in connection with a Schedule IV attached to the Sixth Amendment (but not including any renewals, refinancings or extensions thereof);
(iii) obligations of the Company and its Subsidiaries in respect of Hedging Agreement which is Agreements entered into for in order to manage existing or anticipated interest rate, foreign currency, commodity rate or other business purposes exchange rate and not for speculative purposes, with a counterparty reasonably satisfactory to the Administrative Agent; provided, that any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to the Administrative Agent;
(civ) Indebtedness existing on obligations of the Closing Date Company and not otherwise permitted under this Sectionits Subsidiaries in connection with any Permitted Receivables Financing, as set forth on Schedule 6.1(t), and to the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereofextent such obligations constitute Indebtedness;
(dv) intercompany Indebtedness of the Borrower and its Subsidiaries incurred in connection with Capital Leases in an aggregate amount, together with the aggregate amount of all purchase money Indebtedness of the Borrower and its Subsidiaries incurred pursuant owing by a Credit Party to subsection (e) below, not to exceed $20,000,000 on any date of determinationanother Credit Party;
(e) purchase money Indebtedness of the Borrower and its Subsidiaries with respect to the purchase of Equipment in an aggregate amount, together with the aggregate amount of all Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (d) above, not to exceed $20,000,000 on any date of determination;
(f) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Parties;
(g) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a) through (e) of this Section; provided that neither the Borrower nor any Guarantor shall be permitted to incur Guaranty Obligations under this subsection (g) with respect to Indebtedness of any Subsidiary that is not a Guarantor ;
(h) Indebtedness owed by (i) any Guarantor to the Borrower, (ii) the Borrower to any Guarantor, (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor to the Borrower or any Guarantor in an amount not to exceed $500,000, or (vi) the Borrower or any Guarantor Senior Notes and a guaranty of the Senior Notes on the terms set forth in the Senior Note Indenture, if given by a Permitted Guarantor,
(vii) in addition to any Subsidiary the Indebtedness otherwise permitted by this subparagraph 5.2(f), other purchase money Indebtedness hereafter incurred by the Company and its Subsidiaries; provided that is the aggregate outstanding principal amount of such Indebtedness shall not a Guarantor in an amount not to exceed $500,00025,000,000 at any time;
(iviii) Indebtedness incurred pursuant to the issuance of Qualified Senior Unsecured Notes; provided that in Bridge Notes and any refinancings, refundings, renewals or replacements thereof (so long as the case of each issuance terms of such Indebtednessrefinancings, (irenewals or replacements do not provide for maturities or amortization payments on or prior to November 15, 2007) no Default or Event and a guaranty of Default shall have occurred and be continuing or would be caused the Bridge Notes by Permitted Guarantors on a pari passu basis with the issuance guaranties of such Indebtedness Guarantors hereunder and any refinancings, refundings renewals or replacements thereof (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Indebtednesssimilar terms); and
(jix) unsecured Subordinated Indebtedness; provided that one or more series of subordinated debt securities issued by the Company for aggregate Net Cash Proceeds not exceeding $250,000,000, on terms (including subordination terms) reasonably consistent with those customary in the case United States capital markets for similar high yield subordinated debt instruments, if the Net Cash Proceeds are applied to repay the Loans as required by subsection 2.6(b) of each issuance the Credit Agreement and to make an offer to prepay the Notes pursuant to subparagraph 5.2(n), and guaranties of such Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused securities given by the issuance of a Permitted Guarantor on such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Subordinated Indebtedness; provided, that no agreement or instrument with respect to Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower to make any payment to the Borrower or any Guarantor (in the form of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrower to pay the Obligationsterms.
Appears in 1 contract
Limitations on Indebtedness. Create(a) The Borrower will not, and will not permit any of its Subsidiaries to, directly or indirectly, be liable or create, incur, assume assume, guarantee or suffer to exist otherwise become liable with respect to, any Indebtedness exceptother than:
(a) the Obligations (excluding Specified Hedge Obligations permitted pursuant to Section 10.1(b));
(b) Indebtedness incurred in connection with a Hedging Agreement which is entered into for interest rate, foreign currency, commodity or other business purposes and not for speculative purposes, with a counterparty reasonably satisfactory to the Administrative Agent; provided, that any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Closing Date and not otherwise permitted under this Section, as set forth on Schedule 6.1(t), and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(d) Indebtedness of the Borrower and its Subsidiaries incurred in connection with Capital Leases in an aggregate amount, together with the aggregate amount of all purchase money Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (e) below, not to exceed $20,000,000 on any date of determination;
(e) purchase money Indebtedness of the Borrower and its Subsidiaries with respect to the purchase of Equipment in an aggregate amount, together with the aggregate amount of all Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (d) above, not to exceed $20,000,000 on any date of determination;
(f) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Parties;
(g) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a) through (e) of this Section; provided that neither the Borrower nor any Guarantor shall be permitted to incur Guaranty Obligations under this subsection (g) with respect to Indebtedness of any Subsidiary that is not a Guarantor ;
(h) Indebtedness owed by (i) any Guarantor to the Borrower, (ii) the Borrower to any Guarantor, (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor to the Borrower or any Guarantor in an amount not to exceed $500,000, or (vi) the Borrower or any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,000;
(i) Indebtedness incurred pursuant evidenced by the notes issued to the issuance of Qualified Senior Unsecured Notes; provided that in Note Lenders.
(ii) Indebtedness outstanding on the case of each issuance date hereof and disclosed on Schedule 5 and any extension, renewal or refunding of such Indebtedness, provided that, on the date of any such extension, renewal or refunding and immediately after giving effect thereto and to the concurrent retirement of any other Indebtedness:
(iA) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Indebtedness and exists;
(iiB) the Administrative Agent shall have received satisfactory written evidence that principal amount of the Borrower would Indebtedness which is to be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Indebtednessextended, renewed or refunded is not increased; and
(jC) unsecured Subordinated the maturity of the Indebtedness which is to be extended, renewed or refunded is not reduced;
(iii) Indebtedness incurred by any Wholly-owned Subsidiary in addition to that otherwise permitted by this Section 7.3, provided that, on the date of any such incurrence and immediately after giving effect thereto and to the concurrent retirement of any other Indebtedness; provided that in the case of each issuance of such Subordinated Indebtedness, :
(iA) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and exists; and
(iiB) the Administrative Agent shall have received satisfactory written evidence that total amount of all Indebtedness of the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Subordinated Indebtedness; provided, that no agreement or instrument with respect to Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary Wholly-Owned Subsidiaries of the Borrower to make any payment (except Indebtedness owed to the Borrower or any Guarantor (in the form to a Wholly-Owned Subsidiary) and all Indebtedness of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrower and/or any of its Wholly-Owned Subsidiaries secured by Liens of the kind described in clause (e) of Section 7.4, does not exceed 10% of Consolidated Net Worth; and
(iv) Indebtedness incurred by the Borrower in addition to pay that otherwise permitted by this Section 7.3, provided that, on the Obligationsdate of any such incurrence and immediately after giving effect thereto and to the concurrent retirement of any other Indebtedness:
(A) no Default or Event of Default exists; and
(B) Consolidated Debt does not exceed 50% of Consolidated Total Capitalization;
(v) Indebtedness incurred pursuant to the Loans and Indebtedness hereunder in respect of the Letters of Credit; and
(vi) Indebtedness owed to the Company or to a Wholly-Owned Subsidiary.
(b) For purposes of this Section 7.3, any Person becoming a Subsidiary after the date hereof shall be deemed, at the time it becomes a Subsidiary, to have incurred all of its then outstanding Indebtedness, and any Person extending, renewing or refunding any Indebtedness shall be deemed to have incurred such Indebtedness at the time of such extension, renewal or refunding.
Appears in 1 contract
Samples: Loan Agreement (Merix Corp)
Limitations on Indebtedness. CreateNo Indenture Obligor shall, nor shall it permit its Obligor Subsidiaries to, directly or indirectly, create, incur, assume issue, assume, guaranty or suffer otherwise become liable with respect to, or become responsible for the payment of, contingently or otherwise ("incur"), any Indebtedness. Notwithstanding the foregoing limitations, the limitations of this Section 1008 shall not apply to exist any Indebtedness exceptthe incurrence of the following Indebtedness:
(ai) Indebtedness of the Company evidenced by the Securities, Indebtedness of any Guarantor evidenced by the Guaranties with respect thereto and Indebtedness of the Company and of the Guarantors, as evidenced by and in respect of all other Transaction Documents;
(ii) Indebtedness evidenced by the New Tranche A Notes and Indebtedness of any guarantor under the New Tranche A Notes Indenture evidenced by the guaranties with respect thereto;
(iii) Indebtedness of any Indenture Obligor or Obligor Subsidiaries constituting Existing Indebtedness and any extension, deferral, renewal, refinancing or refunding thereof, without increasing the aggregate principal amount of such Indebtedness then outstanding and covered thereby;
(iv) Indebtedness of PCI and the Company in respect of and in accordance with the terms of, the Exit Facility; provided that, notwithstanding the terms of the Exit Facility, the aggregate principal amount of Indebtedness at any time outstanding under the Exit Facility shall not exceed $65,000,000;
(v) Capitalized Lease Obligations of any Indenture Obligor or its Obligor Subsidiaries, including Indebtedness in respect of Capitalized Lease Obligations of any Indenture Obligor or its Obligor Subsidiary secured by Liens that secure the payment of all or part of the purchase price of assets or property acquired or constructed in the ordinary course of business after the Closing Date; provided, however, that the aggregate principal amount of such Capitalized Lease Obligations, including such Indebtedness in respect of Capitalized Lease Obligations of Indenture Obligors and all of their respective Obligors Subsidiaries, does not exceed $10,000,000 in the aggregate outstanding at any time;
(excluding Specified Hedge Obligations permitted pursuant vi) Indebtedness of PCI or the Company to Section 10.1(b)any of their respective Subsidiaries or of any such Subsidiary to PCI, the Company or another such Subsidiary (but only so long as such Indebtedness is held by PCI, the Company or such Subsidiary);
(bvii) Indebtedness[, not secured by or subject to any Lien,] under Hedging Obligations incurred in the ordinary course of PCI's or the Company's business; provided, however, [that if such Indebtedness shall be secured by or subject to any Liens permitted under Section 1012, the aggregate Indebtedness at anyone time outstanding in respect of all such Hedging Obligations which shall be secured by or subject to such Liens [cash] shall not exceed $[o], and provided, further,] that in the case of foreign currency exchange or similar agreements which relate to other Indebtedness, such agreements do not increase the Indebtedness of any Indenture Obligor or its Obligor Subsidiaries outstanding other than as a result of fluctuations in foreign currency exchange rates, and in the case of interest rate protection agreements, only if the notional principal amount of such interest rate protection agreement does not exceed the principal amount of the Indebtedness to which such interest rate protection agreement relates;
(viii) Indebtedness, not secured by or subject to any Lien [(except as shall, in the ordinary course of business, be backed by cash)], in respect of performance, completion, guaranty, surety and similar bonds, banker's acceptances, bills of exchange or letters of credit provided or to be endorsed by PCI, the Company or any of their respective Subsidiaries in the ordinary course of business;
(ix) Indebtedness, not secured by or subject to any Lien, in respect of (i) any guaranty (not otherwise referred to above) provided by PCI, the Company or any of their respective Subsidiaries in respect of any other Indebtedness permitted to be incurred hereunder; provided, however, that if such Indebtedness guaranteed is subordinated in right of payment to any other Indebtedness of the Indenture Obligor thereof, then such guaranty shall be subordinated to Indebtedness of such guarantor to the same extent, (ii) indemnities in favor of Persons issuing title insurance policies, (iii) indemnifications in the Transaction Documents and in any agreements contemplated thereunder or thereby and (iv) indemnities in the Organizational Documents of PCI and its Subsidiaries;
(x) Indebtedness, not secured by or subject to any Lien, of a Person which becomes a Subsidiary of the Company incurred and outstanding on or prior to the date on which such Person was acquired as a Subsidiary by the Company; provided that (i) on the date of such acquisition and after giving effect thereto, the Consolidated Fixed Charge Coverage Ratio of the Company for the most recently ended four full Fiscal Quarters for which internal financial statements are available immediately preceding the date of such incurrence would have been at least equal to 2.5:1.0 determined on a pro forma basis after giving effect, in each case, to such acquisition which makes that Person a Subsidiary of the Company, and (ii) immediately after giving effect to the acquisition of such Person, no Default or Event of Default shall occur and be continuing;
(xi) Indebtedness subject to Liens permitted by Section 1012 (including Attributable Indebtedness in respect of Sale and Leaseback Transactions);
(xii) Indebtedness incurred in connection with a Hedging Agreement which is entered into for interest rate, foreign currency, commodity or other business purposes respect of New Other Secured Notes and not for speculative purposes, with a counterparty reasonably satisfactory to the Administrative Agent; provided, that any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to the Administrative AgentClaims;
(cxiii) Indebtedness existing on the Closing Date and Subordinated Indebtedness, not otherwise permitted under this Section, as set forth on Schedule 6.1(t), and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(d) Indebtedness of the Borrower and its Subsidiaries incurred in connection with Capital Leases in an aggregate amount, together with the aggregate amount of all purchase money Indebtedness of the Borrower and its Subsidiaries incurred pursuant secured by or subject to subsection (e) belowany Lien, not to exceed $20,000,000 on any date of determination;
(e) purchase money Indebtedness of the Borrower and its Subsidiaries with respect to the purchase of Equipment 25,000,000 in an aggregate amount, together with the aggregate amount of all Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (d) above, not to exceed $20,000,000 on at any date of determination;
(f) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Parties;
(g) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a) through (e) of this Sectionone time outstanding; provided that neither the Borrower nor any Guarantor shall be permitted to incur Guaranty Obligations under this subsection (g) with respect to Indebtedness of any Subsidiary that is not a Guarantor ;
(h) Indebtedness owed by (i) any Guarantor on the date of incurrence of such Subordinated Indebtedness and after giving effect thereto, the Consolidated Fixed Charge Coverage Ratio of the Company for the most recently ended four full Fiscal Quarters immediately 92 preceding the date of such incurrence would have been at least equal to the Borrower2.5:1.0 determined on a pro forma basis, and (ii) the Borrower immediately after giving effect to any Guarantor, (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor to the Borrower or any Guarantor in an amount not to exceed $500,000, or (vi) the Borrower or any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,000;
(i) Indebtedness incurred pursuant to the issuance of Qualified Senior Unsecured Notes; provided that in the case of each issuance of such Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing continuing; or
(xiv) any refinancing, refunding, deferral, renewal or would extension (each, a "Refinancing") of any Indebtedness of any Obligor or any Obligor Subsidiary permitted by subsections (ii), (iv), (x) and (xii) (the "Refinancing Indebtedness"); provided, however, that (a) such Refinancing Indebtedness does not exceed the aggregate principal amount of the Indebtedness so refinanced, plus the amount of any premium required to be caused by paid in connection with such Refinancing in accordance with the issuance terms of such Indebtedness or the amount of any premium reasonably determined by such Obligor as necessary to accomplish such Refinancing, plus the amount of reasonable and customary out-of-pocket fees and expenses payable in connection therewith, (b) the Refinancing Indebtedness does not provide for any mandatory redemption, amortization or sinking fund requirement in an amount greater than or at a time prior to the amounts and times specified in the Indebtedness being refinanced, refunded, deferred, renewed or extended and (iic) if the Administrative Agent shall have received satisfactory written evidence that Indebtedness being refinanced, refunded, deferred, renewed or extended is subordinated to the Borrower would be Indebtedness of the Obligor or Obligor Subsidiaries under the Securities, the Refinancing Indebtedness incurred to refinance, refund, defer, renew or extend such Indebtedness is subordinated in compliance with all covenants right of payment to the Obligations on terms at least as favorable to the Holders as those contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Indebtedness; and
(j) unsecured Subordinated Indebtedness; provided that in documentation governing the case of each issuance of such Subordinated IndebtednessIndebtedness being so refinanced, (i) no Default refunded, deferred, renewed or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Subordinated Indebtednessextended; provided, however, that no agreement or instrument with respect to Indebtedness permitted to be incurred by pursuant to this Section 1008 (except for the Exit Facility or any refinancing thereof permitted under this Indenture) shall restrict, limit contain any terms that are more restrictive on or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower to make any payment to the Borrower obligor of such Indebtedness than those set forth in this Indenture, whether taken individually or any Guarantor (in the form of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrower to pay the Obligationsas a whole.
Appears in 1 contract
Samples: Indenture (Pioneer Companies Inc)
Limitations on Indebtedness. CreateNo Indenture Obligor shall, nor shall it permit its Obligor Subsidiaries to, directly or indirectly, create, incur, assume issue, assume, guaranty or suffer otherwise become liable with respect to, or become responsible for the payment of, contingently or otherwise ("incur"), any Indebtedness. Notwithstanding the foregoing limitations, the limitations of this Section 1008 shall not apply to exist any Indebtedness exceptthe incurrence of the following Indebtedness:
(ai) Indebtedness of the Company evidenced by the Securities, Indebtedness of any Guarantor evidenced by the Guaranties with respect thereto and Indebtedness of the Company and of the Guarantors, as evidenced by and in respect of all other Indenture Obligations and Indenture Documents;
(excluding Specified Hedge ii) Indebtedness of Pioneer Americas evidenced by the New Tranche A Term Notes or under or in respect of the Term Loan Agreement and all other obligations continued or incurred thereunder, Indebtedness of any guarantor in respect of the guaranties of the obligations under the Term Loan Agreement or the New Tranche A Term Notes, Indebtedness of Pioneer Americas evidenced by the New Tranche A Notes, Indebtedness of any guarantor in respect of the guaranties of the New Tranche A Notes and Indebtedness in respect of all other Transaction Documents and all other obligations incurred thereunder;
(iii) Indebtedness of any Indenture Obligor or Obligor Subsidiaries constituting Existing Indebtedness and any extension, deferral, renewal, refinancing or refunding thereof, without increasing the aggregate principal amount of such Indebtedness then outstanding and covered thereby;
(iv) Indebtedness of any Obligor or Obligor Subsidiary in respect of and in accordance with the terms of, the Exit Facility; provided that notwithstanding the terms of the Exit Facility, the aggregate principal amount of Indebtedness at any time outstanding under the Exit Facility shall not exceed $65,000,000;
(v) Capitalized Lease Obligations permitted pursuant of any Indenture Obligor or its Obligor Subsidiaries, including Indebtedness in respect of Capitalized Lease Obligations of any Indenture Obligor or its Obligor Subsidiary secured by Liens that secure the payment of all or part of the purchase price of assets or property acquired or constructed in the ordinary course of business after the date hereof; provided, however, that the aggregate principal amount of such Capitalized Lease Obligations, including such Indebtedness in respect of Capitalized Lease Obligations of Indenture Obligors and all of their respective Obligors Subsidiaries, does not exceed $10,000,000 in the aggregate outstanding at any time;
(vi) Indebtedness of PCI or the Company to Section 10.1(b)any of their respective Subsidiaries or of any such Subsidiary to PCI, the Company or another such Subsidiary (but only so long as such Indebtedness is held by PCI, the Company or such Subsidiary);
(bvii) Indebtedness incurred in connection with a the CRC Portfolio and other Indebtedness, not secured by or subject to any Lien, under Hedging Agreement which is Obligations incurred in the ordinary course of PCI's or Pioneer Americas' business or entered into for interest rate, foreign currency, commodity by Pioneer Americas (or any other business purposes and not for speculative purposes, with a counterparty reasonably satisfactory to the Administrative Agent; provided, that any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing Person on the Closing Date and not otherwise permitted under this Section, as set forth on Schedule 6.1(t), and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(d) Indebtedness behalf of the Borrower and its Subsidiaries incurred in connection with Capital Leases in an aggregate amount, together Pioneer Americas with the aggregate amount express authority of all purchase money Indebtedness Pioneer Americas to bind Pioneer Americas with respect thereto) for the sole purpose of the Borrower and its Subsidiaries incurred pursuant to subsection (e) below, not to exceed $20,000,000 on offsetting any date of determination;
(e) purchase money Indebtedness of the Borrower and its Subsidiaries open position with respect to the purchase of Equipment CRC Portfolio and otherwise mitigating any exposure in an aggregate amount, together with the aggregate amount of all Indebtedness respect of the Borrower and its Subsidiaries incurred pursuant to subsection (d) aboveCRC Portfolio; provided, not to exceed $20,000,000 on any date of determination;
(f) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Parties;
(g) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a) through (e) of this Section; provided that neither the Borrower nor any Guarantor shall be permitted to incur Guaranty Obligations under this subsection (g) with respect to Indebtedness of any Subsidiary that is not a Guarantor ;
(h) Indebtedness owed by (i) any Guarantor to the Borrowerhowever, (ii) the Borrower to any Guarantor, (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor to the Borrower or any Guarantor in an amount not to exceed $500,000, or (vi) the Borrower or any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,000;
(i) Indebtedness incurred pursuant to the issuance of Qualified Senior Unsecured Notes; provided that in the case of foreign currency exchange or similar agreements which relate to other Indebtedness, such agreements do not increase the Indebtedness of any Indenture Obligor or its Obligor Subsidiaries outstanding other than as a result of fluctuations in foreign currency exchange rates, and in the case of interest rate protection agreements, only if the notional principal amount of such interest rate protection agreement does not exceed the principal amount of the Indebtedness to which such interest rate protection agreement relates;
(viii) Indebtedness, not secured by or subject to any Lien (except as shall, in the ordinary course of business, be backed by cash or cash equivalents), in respect of performance, completion, guaranty, surety and similar bonds, banker's acceptances, bills of exchange or letters of credit provided or to be endorsed by PCI, the Company or any of their respective Subsidiaries in the ordinary course of business;
(ix) Indebtedness, not secured by or subject to any Lien, in respect of (i) any guaranty (not otherwise referred to above) provided by PCI, the Company or any of their respective Subsidiaries in respect of any other Indebtedness permitted to be incurred hereunder; provided, however, that if such Indebtedness guaranteed is (x) subordinated in right of payment to any other Indebtedness of the Indenture Obligor thereof, then such guaranty shall be subordinated to Indebtedness of such guarantor to the same extent, and (y) secured by a Lien otherwise permitted pursuant to Section 1012, then such guaranty may be so secured, (ii) indemnities in favor of Persons issuing title insurance policies, (iii) indemnifications in the Transaction Documents and in any agreements contemplated thereunder or thereby, (iv) indemnities in the Organizational Documents of PCI and its Subsidiaries, and (v) customary indemnities given to a purchaser of assets from the Company; provided that the sale of such assets by the Company is permitted pursuant to the terms hereof;
(x) Indebtedness, not secured by or subject to any Lien, of a Person which becomes a Subsidiary of the Company incurred and outstanding on or prior to the date on which such Person was acquired as a Subsidiary by the Company; provided that (i) on the date of such acquisition and after giving effect thereto, the Consolidated Fixed Charge Coverage Ratio of the Company for the most recently ended four full Fiscal Quarters for which internal financial statements are available immediately preceding the date of such incurrence would have been at least equal to 2.5:1.0 determined on a pro forma basis after giving effect, in each issuance case, to such acquisition which makes that Person a Subsidiary of the Company, and (ii) immediately after giving effect to the acquisition of such Person, no Default or Event of Default shall occur and be continuing;
(xi) Indebtedness subject to Liens permitted by Section 1012 (including purchase money Indebtedness and Attributable Indebtedness in respect of Sale and Leaseback Transactions);
(xii) Indebtedness incurred in respect of New Other Secured Notes and Claims;
(xiii) Subordinated Indebtedness, not secured by or subject to any Lien; provided that (i) on the date of incurrence of such Subordinated Indebtedness and after giving effect thereto, the Consolidated Fixed Charge Coverage Ratio of the Company for the most recently ended four full Fiscal Quarters immediately preceding the date of such incurrence would have been at least equal to 1.75:1.0 determined on a pro forma basis, and (ii) immediately after giving effect to such Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing continuing;
(xiv) any refinancing, refunding, deferral, renewal or would extension (each, a "Refinancing") of any Indebtedness of any Obligor or any Obligor Subsidiary permitted by subsections (ii), (iii), (iv), (x) and (xii) (the "Refinancing Indebtedness"); provided, however, that (a) such Refinancing Indebtedness does not exceed the aggregate principal amount of the Indebtedness so refinanced, plus the amount of any premium required to be caused by paid in connection with such Refinancing in accordance with the issuance terms of such Indebtedness or the amount of any premium reasonably determined by such Obligor as necessary to accomplish such Refinancing, plus the amount of reasonable and customary out-of-pocket fees and expenses payable in connection therewith, (b) the Refinancing Indebtedness does not provide for any mandatory redemption, amortization or sinking fund requirement in an amount greater than or at a time prior to the amounts and times specified in the Indebtedness being refinanced, refunded, deferred, renewed or extended and (iic) if the Administrative Agent shall have received satisfactory written evidence that Indebtedness being refinanced, refunded, deferred, renewed or extended is subordinated to the Borrower would be Indebtedness of the Obligor or Obligor Subsidiaries under the Securities, the Refinancing Indebtedness incurred to refinance, refund, defer, renew or extend such Indebtedness is subordinated in compliance with all covenants right of payment to the Obligations on terms at least as favorable to the Holders as those contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Indebtednessdocumentation governing the Indebtedness being so refinanced, refunded, deferred, renewed or extended; andor
(jxv) unsecured Subordinated Indebtedness; provided that in the case of each issuance of such Subordinated Indebtedness, addition to Indebtedness permitted by clauses (i) no Default or Event through (xiii) of Default shall have occurred and be continuing or would be caused by the issuance this Section 1008, Indebtedness of such Subordinated Indebtedness Obligors and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be Obligor Subsidiaries, 100 taken together, in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect an aggregate principal amount not to the issuance of exceed $200,000 at any such Subordinated Indebtednesstime outstanding; provided, however, that no agreement or instrument with respect to Indebtedness permitted to be incurred by pursuant to this Section 1008 (except for the Exit Facility or any refinancing thereof permitted under this Indenture) shall restrict, limit contain any terms that are more restrictive on or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower to make any payment to the Borrower obligor of such Indebtedness than those set forth in this Indenture, whether taken individually or any Guarantor (in the form of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrower to pay the Obligationsas a whole.
Appears in 1 contract
Samples: Indenture (Pioneer Companies Inc)
Limitations on Indebtedness. CreateNo Indenture Obligor shall, nor shall it permit its Obligor Subsidiaries to, directly or indirectly, create, incur, assume issue, assume, guaranty or suffer to exist otherwise become liable with respect to, or become responsible for the payment of, contingently or otherwise ("incur"), any Indebtedness except:
(a) Indebtedness. Notwithstanding the Obligations (excluding Specified Hedge Obligations permitted pursuant to foregoing limitations, the limitations of this Section 10.1(b));
(b) Indebtedness incurred in connection with a Hedging Agreement which is entered into for interest rate, foreign currency, commodity or other business purposes and 1008 shall not for speculative purposes, with a counterparty reasonably satisfactory apply to the Administrative Agent; provided, that any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Closing Date and not otherwise permitted under this Section, as set forth on Schedule 6.1(t), and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(d) Indebtedness incurrence of the Borrower and its Subsidiaries incurred in connection with Capital Leases in an aggregate amount, together with the aggregate amount of all purchase money Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (e) below, not to exceed $20,000,000 on any date of determination;
(e) purchase money Indebtedness of the Borrower and its Subsidiaries with respect to the purchase of Equipment in an aggregate amount, together with the aggregate amount of all Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (d) above, not to exceed $20,000,000 on any date of determination;
(f) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Parties;
(g) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a) through (e) of this Section; provided that neither the Borrower nor any Guarantor shall be permitted to incur Guaranty Obligations under this subsection (g) with respect to Indebtedness of any Subsidiary that is not a Guarantor ;
(h) Indebtedness owed by (i) any Guarantor to the Borrower, (ii) the Borrower to any Guarantor, (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor to the Borrower or any Guarantor in an amount not to exceed $500,000, or (vi) the Borrower or any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,000;following Indebtedness:
(i) Indebtedness incurred pursuant to of the issuance of Qualified Senior Unsecured Notes; provided that in the case of each issuance of such Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused Company evidenced by the issuance Securities, Indebtedness of any Guarantor evidenced by the Guaranties with respect thereto and Indebtedness of the Company and of the Guarantors, as evidenced by and in respect of all other Transaction Documents;
(ii) Indebtedness evidenced by the New Tranche A Term Notes, Indebtedness in respect of the Term Loans, the Term Loan Agreement and all other obligations incurred thereunder;
(iii) Indebtedness of any Indenture Obligor or Obligor Subsidiaries constituting Existing Indebtedness and any extension, deferral, renewal, refinancing or refunding thereof, without increasing the aggregate principal amount of such Indebtedness then outstanding and covered thereby;
(iiiv) Indebtedness of PCI and the Administrative Agent Company in respect of and in accordance with the terms of, the Exit Facility; provided that, notwithstanding the terms of the Exit Facility, the aggregate principal amount of Indebtedness at any time outstanding under the Exit Facility shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance not exceed $50,000,000; 87 100 (v) Capitalized Lease Obligations of any such Indebtedness; and
(j) unsecured Subordinated Indebtedness; provided Indenture Obligor or its Obligor Subsidiaries, including Indebtedness in respect of Capitalized Lease Obligations of any Indenture Obligor or its Obligor Subsidiary secured by Liens that secure the payment of all or part of the purchase price of assets or property acquired or constructed in the case ordinary course of each issuance of such Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by business after the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Subordinated IndebtednessClosing Date; provided, however, that no agreement or instrument with the aggregate principal amount of such Capitalized Lease Obligations, including such Indebtedness in respect to Indebtedness permitted to be incurred by this Section shall restrictof Capitalized Lease Obligations of Indenture Obligors and all of their respective Obligors Subsidiaries, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower to make any payment to the Borrower or any Guarantor (does not exceed $10,000,000 in the form of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrower to pay the Obligations.aggregate outstanding at any time;
Appears in 1 contract
Samples: Indenture (Pioneer Companies Inc)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations (excluding Specified Hedge Hedging Obligations permitted pursuant to Section 10.1(b11.1(b));
(b) Indebtedness incurred in connection with a Hedging Agreement which is entered into for interest rateAgreement, foreign currencyin each case, commodity or other incurred in the ordinary course of business purposes and not for speculative purposes, with a counterparty reasonably satisfactory to the Administrative Agent; provided, that any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Closing Date and not otherwise permitted under this Section, as set forth on Schedule 6.1(t7.1(t), and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(d) Indebtedness of the US Borrower and its Subsidiaries incurred in connection with Capital Leases in an aggregate amount, together with the aggregate amount of all purchase money Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (e) below, not to exceed $20,000,000 10,000,000 on any date of determination;
(e) purchase money Indebtedness of the US Borrower and its Subsidiaries with respect to the purchase of Equipment in an aggregate amount, together with the aggregate amount of all Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (d) above, not to exceed $20,000,000 10,000,000 on any date of determination;
(f) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured PartiesLenders;
(g) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a) through (e) or subsection (p) of this Section; provided that neither the Borrower nor any Guarantor shall be permitted to incur Guaranty Obligations under this subsection (g) with respect to Indebtedness of any Subsidiary that is not a Guarantor ;
(h) Indebtedness owed by (i) by the US Borrower to any Guarantor to the BorrowerSubsidiary Guarantor, (ii) by any Subsidiary Guarantor to the Borrower to any GuarantorUS Borrower, (iii) by any Subsidiary Guarantor to any other Subsidiary Guarantor, or (iv) by any Subsidiary that is not a Subsidiary Guarantor to any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary that is not a Guarantor to the Borrower or any Guarantor in an amount not to exceed $500,000, or (vi) the Borrower or any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,000;
(i) Indebtedness incurred pursuant to the issuance of Qualified Senior Unsecured Notes; provided that in the case of each issuance of such Indebtedness, (i) so long as no Default or Event of Default shall have has occurred and be is continuing or would be caused result therefrom, Indebtedness owed by the issuance of such US Borrower and any Subsidiary Guarantor to any Foreign Subsidiary or Indebtedness owed by any Foreign Subsidiary to the US Borrower and (ii) any Subsidiary Guarantor which, together with the Administrative Agent shall have received satisfactory written evidence that the Borrower would be Permitted Acquisition Consideration payable in compliance connection with all covenants contained in this Agreement on a pro forma basis after giving effect to Permitted Foreign Acquisitions and the issuance total amount of any such Indebtedness; andtransactions permitted under Sections 11.3(i) and 11.5(f), does not exceed $60,000,000 in the aggregate during the period from the Closing Date through and including the later to occur of the Revolving Credit Maturity Date or the Term Loan Maturity Date;
(j) unsecured Subordinated Indebtedness; provided that in the case of each issuance of such Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the US Borrower and its Subsidiaries would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Subordinated Indebtedness;
(k) additional Indebtedness of the US Borrower and the Subsidiary Guarantors not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed $5,000,000;
(l) so long as no Default or Event of Default has occurred and is continuing or would occur as a result therefrom, Indebtedness arising in connection with an Accounts Securitization;
(m) endorsements of negotiable instruments for deposit or collection in the ordinary course of business;
(n) unsecured Indebtedness in respect of performance bonds, worker’s compensation claims, surety or appeal bonds and payment obligations in connection with self insurance or similar obligations, in each case to the extent incurred in the ordinary course of business;
(o) Guaranty Obligations consisting of an unsecured limited guaranty of certain of the obligations of Northpark Corporate Center, L.L.C. pursuant to that certain $9,400,000 loan agreement by and between Northpark Corporate Center, L.L.C. and Xxxxx Fargo Bank, National Association; provided that such Guaranty Obligations shall be (i) in an aggregate principal amount not to exceed $9,400,000 and (ii) evidenced by a guaranty agreement in form and substance satisfactory to the Administrative Agent; and
(i) Indebtedness in connection with the February 2007 Notes and (ii) any refinance of the February 2007 Notes or any additional unsecured Indebtedness issued under, or by a supplement to, the February 2007 Note Purchase Agreement or any similar note purchase agreement or other debt instrument; provided that such refinancing or additional unsecured Indebtedness shall be on terms and conditions that are, taken as a whole, (A) consistent with the then-current market terms and conditions of such type of unsecured debt (as reasonably determined in good faith by the board of directors of the US Borrower) and (B) no less favorable to the Lenders than the terms of the February 2007 Notes (as reasonably determined by the Administrative Agent); provided further that with respect to any Indebtedness incurred pursuant to clause (ii), (1) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance thereof, (2) the Administrative Agent shall have received satisfactory written evidence that the US Borrower and its Subsidiaries would be in compliance with all covenants in this Agreement on a pro forma basis after giving effect to the issuance thereof, and (3) the maturity date of such senior Indebtedness shall be no earlier than the Indebtedness (if any) being refinanced and in any event shall be at least six (6) months after each of the Revolving Credit Maturity Date and the Term Loan Maturity Date; provided, that no agreement or instrument with respect to Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the any Borrower to make any payment to the such Borrower or any Guarantor of its Subsidiaries (in the form of dividends, intercompany advances or otherwise) for the purpose of enabling the such Borrower to pay the Obligations.
Appears in 1 contract
Samples: Credit Agreement (Pool Corp)
Limitations on Indebtedness. CreateThe Obligors will not, and will not permit any of their respective Subsidiaries to, directly or indirectly, create, incur, assume or suffer permit to exist any Indebtedness Indebtedness, and with respect to any Subsidiary, to issue any preferred stock, except:
(ai) Indebtedness created hereunder or under the Obligations other Transaction Documents;
(excluding Specified Hedge Obligations permitted ii) Indebtedness of a Loan Party (as defined in the Bank Credit Agreement) in respect of amounts outstanding (including all amounts due, contingently or otherwise, in respect of reimbursement obligations under letters of credit or similar instruments and all related reimbursement agreements) under the Bank Credit Documents, not in excess of the result of (A) $200,000,000 (subject to further increase of up to $125,000,000 pursuant to Section 10.1(b2.06A of the Bank Credit Agreement so long as no Event of Default is continuing at the time of any such increase)), minus (B) the aggregate amount of any permanent reductions in the principal amount of the commitments under the revolving credit facility established thereunder and Indebtedness incurred in substitution, refinancing or replacement of such Indebtedness; provided that (i) the terms, covenants and restrictions in respect of such substitutions, refinancings and replacements are not more materially onerous than the existing terms, covenants and restrictions of such Indebtedness being substituted, refinanced or replaced and (ii) the aggregate principal amount of the Indebtedness of the Loan Parties (as defined in the Bank Credit Agreement) under this clause (ii) shall not at any time exceed $325,000,000;
(biii) Indebtedness existing on the Effective Date and set forth in Schedule 6D, including any refinancing, extension, renewal or refunding of any such Indebtedness in an amount not to exceed the amount so refinanced of such Indebtedness; provided that the terms, covenants and restrictions in respect of such refinancing, extension, renewal or refunding are not materially more onerous than the existing terms, covenants and restrictions of such Indebtedness;
(iv) Indebtedness incurred in connection with a Hedging Agreement which is entered into for interest rateany renewal, foreign currencyextension, commodity substitution, refinancing or other business purposes replacement, in an amount not to exceed the amount so renewed, extended, substituted, refinanced or replaced, of any outstanding Indebtedness otherwise permitted hereunder (excluding from this paragraph 6D(iv) the Indebtedness referred to in paragraph 6D(ii)); provided that the terms, covenants and restrictions in respect of such renewals, extensions, substitutions, refinancings or replacements are not for speculative purposesmore materially onerous than the existing terms, with a counterparty reasonably satisfactory to the Administrative Agent; providedcovenants and restrictions of such Indebtedness being renewed, that any counterparty that is a Lender extended, substituted, refinanced or an Affiliate thereof shall be deemed satisfactory to the Administrative Agentreplaced;
(cv) Indebtedness existing on the Closing Date and not otherwise Adjusted Hedging Exposure Amounts in connection with Hedging Agreements permitted under this Section, as set forth on Schedule 6.1(t), and the renewal, refinancing, extension and replacement (but paragraph 6N not the increase exceeding in the aggregate (x) $15,000,000 minus (y) the aggregate principal amountamount of Indebtedness outstanding pursuant to paragraph 6D(iv) thereofincurred in order to renew, extend, substitute, refinance or replace Indebtedness incurred pursuant to this clause (v);
(dvi) preferred stock of any Subsidiary issued on or prior to the Effective Date;
(vii) Indebtedness of, or preferred stock issued by, any Subsidiary to the Parent or any other Credit Party and permitted under paragraph 6M;
(viii) Indebtedness of one Credit Party or a Subsidiary of a Credit Party to another Credit Party or Subsidiary of a Credit Party; provided that (a) all of the Borrower Equity Interests of each such Credit Party or such Subsidiary (other than the Parent) shall be owned 100% (excluding directors’ qualifying shares) directly or indirectly by the Parent except in the case of Indebtedness which may be owing by non-Wholly-Owned Subsidiaries in an aggregate outstanding principal amount not to exceed (x) $10,000,000 minus (y) the aggregate principal amount of Indebtedness outstanding pursuant to paragraph 6D(iv) incurred in order to renew, extend, substitute, refinance or replace Indebtedness incurred pursuant to this clause (a), (b) other than Indebtedness resulting from investments permitted under paragraph 6M pursuant to subclauses (b) and its (c) of clause (i) of the definition of “Permitted Loans and Investments”, each of such Credit Parties or such Subsidiaries to or by whom such Indebtedness is owed, or who owns (directly or indirectly) any Equity Interests referred to in the preceding clause (a), shall have become a party to the Subsidiary Guaranty and/or to the Pledge Agreement (or to all of them) to the extent required by paragraph 5K hereof, (c) such Indebtedness shall at all times be subject to the provisions of the Subordination Agreement as Subordinated Debt (as defined in the Subordination Agreement) and each Credit Party or other Subsidiary to whom such Indebtedness is owed shall be party to the Subordination Agreement as a Subordinated Creditor (as defined in the Subordination Agreement) and (d) in the case of any such Indebtedness owing by a Credit Party, the holder of such Indebtedness shall be a Credit Party;
(ix) contingent obligations in respect of customary indemnification and purchase price adjustment obligations incurred in connection with Capital Leases Transfers of properties or assets or with purchases of properties or assets permitted hereunder;
(x) Guarantees in an aggregate amountrespect of any Indebtedness permitted pursuant to this paragraph 6D if such guaranteeing Person would be permitted to incur such Indebtedness under this paragraph 6D;
(xi) obligations in respect of performance bonds and completion, guarantee, surety and similar bonds, in each case obtained in the ordinary course of business to support statutory and contractual obligations (other than Indebtedness) arising in the ordinary course of business;
(xii) Indebtedness arising from the honoring of a bank or other financial institution of a check, draft or other similar instrument drawn against insufficient funds in the ordinary course of business;
(xiii) Indebtedness arising from the endorsement of items for deposit or collection of commercial paper received in the ordinary course of business;
(xiv) Indebtedness incurred in connection with the financing of insurance premiums; and
(xv) other Indebtedness incurred by the Obligors or any other Indebtedness or preferred stock of any of their respective Subsidiaries; provided that, at the time of incurrence thereof and after giving effect thereto and to the application of the proceeds thereof, Consolidated Indebtedness shall not exceed 55% of Total Capitalization of the Parent and its Subsidiaries and provided, further, that, for any Subsidiary of the Parent other than the Issuer, such Indebtedness and preferred stock together with the aggregate amount of all purchase money outstanding Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (e) below, not to exceed $20,000,000 on any date of determination;
(e) purchase money Indebtedness of the Borrower and its Subsidiaries with respect to the purchase of Equipment in an aggregate amount, together with the aggregate amount liquidation value of all Indebtedness preferred stock of the Borrower such Subsidiary previously incurred and its Subsidiaries incurred pursuant to subsection outstanding under this paragraph 6D (d) above, not to exceed $20,000,000 on any date of determination;
(f) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Parties;
(g) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections than (a) through Indebtedness incurred under clauses (ei), (ii), (iii), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii) and (xiv) of this Section; provided that neither the Borrower nor any Guarantor shall be permitted to incur Guaranty Obligations under this subsection paragraph 6D and (g) with respect to Indebtedness of any Subsidiary that is not a Guarantor ;
(hb) Indebtedness owed by (i) any Guarantor to the Borrower, (ii) the Borrower to any Guarantor, (iii) any Guarantor to any other Guarantor, incurred under clause (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor of this paragraph 6D to the Borrower extent that such Indebtedness renews, extends, substitutes, refinances or any Guarantor in an amount not to exceed $500,000, or (vi) the Borrower or any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,000;
(i) replaces Indebtedness incurred pursuant to the issuance of Qualified Senior Unsecured Notes; provided that described in the case foregoing clause (a)), does not at any time exceed 25% of each issuance of such Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Indebtedness; and
(j) unsecured Subordinated Indebtedness; provided that in the case of each issuance of such Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Subordinated IndebtednessConsolidated Net Worth; provided, that no agreement that, notwithstanding anything to the contrary set forth in the definition of Permitted Liens or instrument with respect this paragraph 6D, the Obligors will not at any time permit Priority Debt to Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability exceed 15% of any Subsidiary Consolidated Net Worth determined as of the Borrower to make any payment to last day of the Borrower or any Guarantor (in most recently ended fiscal quarter of the form of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrower to pay the ObligationsParent.
Appears in 1 contract
Samples: Note Purchase and Private Shelf Agreement (DREW INDUSTRIES Inc)
Limitations on Indebtedness. Create(a) The Company will not Incur, incurand the Company will not permit any Restricted Subsidiary to Incur, assume directly or suffer indirectly, (i) any Unsecured Senior Indebtedness unless (A) the Adjusted Consolidated Leverage Ratio, on the date of such Incurrence and after giving effect thereto, does not exceed 1.0 to exist 1.0, (B) the Consolidated Leverage Ratio, on the date of such Incurrence and after giving effect thereto, does not exceed 2.0 to 1.0, (C) the Stated Maturity of such Indebtedness is at least 91 days after the Stated Maturity of the Notes, and (D) the Average Life of such Indebtedness is longer than the Average Life of the Notes, or (ii) any Indebtedness except(other than Unsecured Senior Indebtedness) or Disqualified Stock if, on the date of such Incurrence and after giving effect thereto, the Consolidated Leverage Ratio exceeds 2.0 to 1.0.
(b) Notwithstanding the foregoing paragraph (a), the Company and its Restricted Subsidiaries may Incur the following Indebtedness:
(a1) Permitted Warehouse Indebtedness and Guarantees by the Company of any Permitted Warehouse Indebtedness of Restricted Subsidiaries, PROVIDED that to the extent any such Indebtedness ceases to constitute Permitted Warehouse Indebtedness of the Company or a Restricted Subsidiary, such event shall be deemed to constitute the Incurrence of such Indebtedness (and any such Guarantees, but without duplication) by the Company or such Subsidiary, as the case may be;
(2) the Notes and the Subsidiary Guarantees;
(3) Hedging Obligations directly related to: (excluding Specified Hedge Obligations i) Indebtedness permitted to be Incurred by the Company or the Restricted Subsidiaries pursuant to Section 10.1(b)this Section; (ii) Receivables held by the Company or its Restricted Subsidiaries pending sale or that have been sold pursuant to a Warehouse Facility; or (iii) Receivables with respect to which the Company or any Restricted Subsidiary has an outstanding purchase or offer commitment, financing commitment or security interest;
(4) Indebtedness outstanding on the Issue Date (other than Permitted Warehouse Indebtedness and Guarantees thereof, which shall be permissible under this paragraph (b) only pursuant to clause (1) above);
(b5) Indebtedness incurred in connection with or Disqualified Stock issued to and held by the Company or a Hedging Agreement which is entered into for interest rateWholly Owned Restricted Subsidiary; PROVIDED, foreign currency, commodity or other business purposes and not for speculative purposes, with a counterparty reasonably satisfactory to the Administrative Agent; providedHOWEVER, that any counterparty subsequent issuance or transfer of any Capital Stock that is results in any such Wholly Owned Restricted Subsidiary ceasing to be a Lender Wholly Owned Restricted Subsidiary or an Affiliate thereof shall be deemed satisfactory any subsequent transfer of such Indebtedness or Disqualified Stock (other than to the Administrative Agent;
(cCompany or a Wholly Owned Restricted Subsidiary) will be deemed, in each case, to constitute the Incurrence of such Indebtedness existing on or issuance of such Disqualified Stock by the Closing Date and not otherwise permitted under this Section, as set forth on Schedule 6.1(t), and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) issuer thereof;
(d6) Indebtedness or Disqualified Stock of a Restricted Subsidiary Incurred on or prior to the date on which such Subsidiary was acquired by the Company, other than Indebtedness or Disqualified Stock Incurred in connection with, or to provide all or any portion of the Borrower and its Subsidiaries incurred in connection with Capital Leases in an aggregate amountfunds or credit support utilized to consummate, together with the aggregate amount transaction or series of all purchase money Indebtedness of the Borrower and its Subsidiaries incurred related transactions pursuant to subsection (e) belowwhich such Subsidiary became a Subsidiary or was acquired by the Company; PROVIDED, not to exceed $20,000,000 HOWEVER, that on any the date of determination;
(e) purchase money such acquisition and after giving effect thereto, the Company would have been able to Incur at least $1.00 of Indebtedness of the Borrower and its Subsidiaries with respect to the purchase of Equipment in an aggregate amount, together with the aggregate amount of all Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (d) above, not to exceed $20,000,000 on any date of determination;
(f) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Parties;
(g) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections paragraph (a) through (e) of this Sectionabove; provided that neither the Borrower nor any Guarantor shall be permitted to incur Guaranty Obligations under this subsection (g) with respect to Indebtedness of any Subsidiary that is not a Guarantor ;and
(h7) Indebtedness owed by (i) any Guarantor to the Borrower, (ii) the Borrower to any Guarantor, (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor to the Borrower or any Guarantor in an amount not to exceed $500,000, or (vi) the Borrower or any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,000;
(i) Indebtedness incurred pursuant to the issuance of Qualified Senior Unsecured Notes; provided that in the case of each issuance of such Indebtedness, (i) while no Default or Event of Default shall have occurred and be continuing exists, Refinancing Indebtedness in respect of Indebtedness Incurred pursuant to paragraph (a) or would be caused by the issuance clause (4) or (6) of such Indebtedness and this paragraph (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Indebtedness; andb).
(jc) unsecured Subordinated Indebtedness; provided that in Notwithstanding the case of each issuance of such Subordinated Indebtednessforegoing, (i) no Default or Event of Default shall have occurred the Company and be continuing or would be caused by its Restricted Subsidiaries may not Incur any Indebtedness (other than the issuance of Notes and the Subsidiary Guarantees) if such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Subordinated Indebtedness; provided, that no agreement or instrument with respect to Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower to make any payment to the Borrower or any Guarantor (in the form of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrower to pay the Obligations.is subordinate
Appears in 1 contract
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness Indebtedness, except:
(a) the Obligations (excluding Specified Indebtedness and obligations owing under Hedge Obligations Agreements permitted pursuant to Section 10.1(b11.1(b));
(b) Indebtedness incurred in connection with a Hedging Agreement which is and obligations owing under (i) Hedge Agreements entered into for in order to manage existing or anticipated interest rate, foreign currency, exchange rate or commodity or other business purposes price risks and not for speculative purposes, with a counterparty reasonably satisfactory to purposes and (ii) Cash Management Agreements entered into between the Administrative Agent; provided, that Borrower and any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to the Administrative Agentof a Lender, as counterparty;
(c) Indebtedness existing on the Closing Date and not otherwise permitted under this Section, as set forth listed on Schedule 6.1(t)11.1, and any refinancings, refundings, renewals or extensions thereof; provided that (i) the renewal, principal amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder, (ii) the final maturity date and weighted average life of such refinancing, refunding, renewal or extension shall not be prior to or shorter than that applicable to the Indebtedness prior to such refinancing, refunding, renewal or extension and replacement (but iii) any refinancing, refunding, renewal or extension of any Subordinated Indebtedness shall be (A) on subordination terms at least as favorable to the Lenders, (B) no more restrictive on the Borrower and its Subsidiaries than the Subordinated Indebtedness being refinanced, refunded, renewed or extended and (C) in an amount not less than the increase in amount outstanding at the aggregate principal amount) thereoftime of such refinancing, refunding, renewal or extension;
(d) Indebtedness of the Borrower and its Subsidiaries incurred in connection with Capital Leases and purchase money Indebtedness in an aggregate amount, together with the aggregate amount of all purchase money Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (e) below, not to exceed $20,000,000 on 90,000,000 at any date of determinationtime outstanding;
(e) purchase money Indebtedness of the Borrower and its Subsidiaries with respect to the purchase of Equipment in an aggregate amount, together with the aggregate amount of all Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (d) above, not to exceed $20,000,000 on any date of determination;
(f) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Parties;
(g) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a), (b), (c), (d) through and (ek) of this Section; ;
(f) unsecured intercompany Indebtedness (i) owed by any Credit Party to another Credit Party, (ii) owed by any Non-Guarantor Subsidiary to another Non-Guarantor Subsidiary, (iii) owed by any Non-Guarantor Subsidiary to any Credit Party (provided that neither the Borrower nor any Guarantor such Indebtedness (A) is permitted pursuant to Section 11.3(g) and (B) shall be permitted evidenced by a demand note in form and substance reasonably satisfactory to incur Guaranty the Administrative Agent) and (iv) owed by any Credit Party to any Non-Guarantor Subsidiary (provided that such Indebtedness pursuant to this clause (iv) shall be subordinated to the Obligations under this subsection in a manner reasonably satisfactory to the Administrative Agent);
(g) with respect to Indebtedness arising from the honoring by a bank or other financial institution of any Subsidiary that is not a Guarantor check, draft or other similar instrument drawn against insufficient funds in the ordinary course of business;
(h) Indebtedness owed by (i) under performance bonds, surety bonds, release, appeal and similar bonds, statutory obligations or with respect to workers’ compensation claims, in each case incurred in the ordinary course of business, and reimbursement obligations in respect of any Guarantor to of the Borrower, (ii) the Borrower to any Guarantor, (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor to the Borrower or any Guarantor in an amount not to exceed $500,000, or (vi) the Borrower or any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,000foregoing;
(i) Indebtedness consisting of promissory notes issued to current or former officers, directors and employees (or their respective family members, estates or trusts or other entities for the benefit of any of the foregoing) of the Borrower or its Subsidiaries to purchase or redeem Capital Stock or options of the Borrower permitted pursuant to Section 11.6(d); provided that the aggregate principal amount of all such Indebtedness shall not exceed $2,000,000 at any time outstanding;
(j) unsecured Guaranty Obligations arising with respect to customary indemnification obligations owed to purchasers in connection with Asset Dispositions permitted by Section 11.5;
(k) Indebtedness of a Person existing at the time such Person became a Subsidiary or assets were acquired from such Person in connection with an Investment permitted pursuant to Section 11.3, to the extent that (i) such Indebtedness was not incurred in connection with, or in contemplation of, such Person becoming a Subsidiary or the acquisition of such assets, (ii) neither the Borrower nor any Subsidiary thereof (other than such Person or any other Person that such Person merges with or that acquires the assets of such Person) shall have any liability or other obligation with respect to such Indebtedness and (iii) the aggregate outstanding principal amount of such Indebtedness does not exceed $30,000,000 at any time outstanding;
(l) Guaranty Obligations of Subsidiaries with respect to Indebtedness of the Borrower permitted pursuant to Section 11.1; provided that such Subsidiaries shall have guaranteed the Obligations pursuant to the issuance Loan Documents;
(m) Indebtedness of Qualified Senior Unsecured NotesFossil Partners, Fossil Group Europe GmbH, Fossil Asia Pacific Ltd. and/or any other Foreign Subsidiary under the Commercial Letter of Credit Facility not to exceed $80,000,000 in aggregate principal amount at any time outstanding, and Guaranty Obligations of the Borrower or any Subsidiary Guarantor with respect to such Indebtedness; and
(n) additional Indebtedness so long as (i) the Borrower is in compliance on a pro forma basis with the covenants contained Article X as of the end of the most recently ended Fiscal Quarter for which financial statements have been provided that in pursuant to Section 8.1(a) or (b), as applicable, after giving effect to the case of each issuance incurrence of such Indebtedness, Indebtedness and (iii) no Default or Event of Default shall have has occurred and be is continuing or would be caused by the issuance of such Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis will result after giving effect to the issuance incurrence of any such Indebtedness; and
(j) unsecured Subordinated Indebtedness; provided that in the case of each issuance of such Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect Net Cash Proceeds thereof are applied to the issuance of any such Subordinated Indebtedness; provided, that no agreement or instrument with respect to Indebtedness permitted to be incurred extent required by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower to make any payment and pursuant to the Borrower or any Guarantor (in the form terms of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrower to pay the ObligationsSection 4.4(b)(iii).
Appears in 1 contract
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness Indebtedness, except:
(a) the Obligations (excluding Specified (i) Indebtedness and obligations owing under Hedge Agreements permitted pursuant to Section 11.1(b) and (ii) Commercial Letter of Credit Facility Obligations permitted pursuant to Section 10.1(b11.1(m));
(b) Indebtedness incurred in connection with a Hedging Agreement which is and obligations owing under (i) Hedge Agreements entered into for in order to manage existing or anticipated interest rate, foreign currency, exchange rate or commodity or other business purposes price risks and not for speculative purposes, with a counterparty reasonably satisfactory to purposes and (ii) Cash Management Agreements entered into between the Administrative Agent; provided, that Borrower and any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to the Administrative Agentof a Lender, as counterparty;
(c) Indebtedness existing on the Closing Date and not otherwise permitted under this Section, as set forth listed on Schedule 6.1(t)11.1, and any refinancings, refundings, renewals or extensions thereof; provided that (i) the renewal, principal amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder, (ii) the final maturity date and weighted average life of such refinancing, refunding, renewal or extension shall not be prior to or shorter than that applicable to the Indebtedness prior to such refinancing, refunding, renewal or extension and replacement (but iii) any refinancing, refunding, renewal or extension of any Subordinated Indebtedness shall be (A) on subordination terms at least as favorable to the Lenders, (B) no more restrictive on the Borrower and its Subsidiaries than the Subordinated Indebtedness being refinanced, refunded, renewed or extended and (C) in an amount not less than the increase in amount outstanding at the aggregate principal amount) thereoftime of such refinancing, refunding, renewal or extension;
(d) Indebtedness of the Borrower and its Subsidiaries incurred in connection with Capital Leases and purchase money Indebtedness in an aggregate amount, together with the aggregate amount of all purchase money Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (e) below, not to exceed $20,000,000 on 40,000,000 at any date of determinationtime outstanding;
(e) purchase money Indebtedness of the Borrower and its Subsidiaries with respect to the purchase of Equipment in an aggregate amount, together with the aggregate amount of all Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (d) above, not to exceed $20,000,000 on any date of determination;
(f) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Parties;
(g) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a), (b), (c), (d) through and (ek) of this Section; ;
(f) unsecured intercompany Indebtedness (i) owed by any Credit Party to another Credit Party, (ii) owed by any Non-Guarantor Subsidiary to another Non-Guarantor Subsidiary, (iii) owed by any Non-Guarantor Subsidiary to any Credit Party (provided that neither the Borrower nor any Guarantor such Indebtedness (A) is permitted pursuant to Section 11.3(g) and (B) shall be permitted evidenced by a demand note in form and substance reasonably satisfactory to incur Guaranty the Administrative Agent) and (iv) owed by any Credit Party to any Non-Guarantor Subsidiary (provided that such Indebtedness pursuant to this clause (iv) shall be subordinated to the Obligations under this subsection in a manner reasonably satisfactory to the Administrative Agent);
(g) with respect to Indebtedness arising from the honoring by a bank or other financial institution of any Subsidiary that is not a Guarantor check, draft or other similar instrument drawn against insufficient funds in the ordinary course of business;
(h) Indebtedness owed by (i) under performance bonds, surety bonds, release, appeal and similar bonds, statutory obligations or with respect to workers’ compensation claims, in each case incurred in the ordinary course of business, and reimbursement obligations in respect of any Guarantor to of the Borrower, (ii) the Borrower to any Guarantor, (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor to the Borrower or any Guarantor in an amount not to exceed $500,000, or (vi) the Borrower or any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,000foregoing;
(i) Indebtedness consisting of promissory notes issued to current or former officers, directors and employees (or their respective family members, estates or trusts or other entities for the benefit of any of the foregoing) of the Borrower or its Subsidiaries to purchase or redeem Capital Stock or options of the Borrower permitted pursuant to Section 11.6(d); provided that the aggregate principal amount of all such Indebtedness shall not exceed $2,000,000 at any time outstanding;
(j) unsecured Guaranty Obligations arising with respect to customary indemnification obligations owed to purchasers in connection with Asset Dispositions permitted by Section 11.5;
(k) Indebtedness of a Person existing at the time such Person became a Subsidiary or assets were acquired from such Person in connection with an Investment permitted pursuant to Section 11.3, to the extent that (i) such Indebtedness was not incurred in connection with, or in contemplation of, such Person becoming a Subsidiary or the acquisition of such assets, (ii) neither the Borrower nor any Subsidiary thereof (other than such Person or any other Person that such Person merges with or that acquires the assets of such Person) shall have any liability or other obligation with respect to such Indebtedness and (iii) the aggregate outstanding principal amount of such Indebtedness does not exceed $30,000,000 at any time outstanding;
(l) Guaranty Obligations of Subsidiaries with respect to Indebtedness of the Borrower permitted pursuant to Section 11.1; provided that such Subsidiaries shall have guaranteed the Obligations pursuant to the issuance Loan Documents;
(m) Indebtedness of Qualified Senior Unsecured NotesFossil Partners, Fossil Group Europe GmbH, Fossil Asia Pacific Ltd. and/or any other Foreign Subsidiary under the Commercial Letter of Credit Facility not to exceed $80,000,000 in aggregate principal amount at any time outstanding, and Guaranty Obligations of the Borrower or any Subsidiary Guarantor with respect to such Indebtedness; and
(n) additional unsecured Indebtedness (including Permitted Convertible Indebtedness) in an aggregate principal amount not to exceed $350,000,000 at any time outstanding; provided that in the case of each issuance of such Indebtedness, (i) on the date of incurrence thereof the Borrower is in compliance on a pro forma basis with the covenants contained Article X as of the end of the most recently ended Fiscal Quarter for which financial statements have been provided pursuant to Section 8.1(a) or (b), as applicable, after giving effect to the incurrence of such Indebtedness (and the Borrower shall deliver a certificate from a Responsible Officer in form and detail reasonably satisfactory to the Administrative Agent confirming the foregoing and demonstrating compliance with the financial covenants after giving effect thereto on a pro forma basis), (ii) on the date of incurrence thereof no Default or Event of Default shall have has occurred and be is continuing or would be caused by the issuance of such Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis will result after giving effect to the issuance of any such Indebtedness; and
(j) unsecured Subordinated Indebtedness; provided that in the case of each issuance incurrence of such Subordinated Indebtedness, (iiii) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance final maturity of such Subordinated Indebtedness is not prior to, and such Indebtedness does not require any scheduled amortization or other scheduled payments of principal prior to, the date that is one hundred eighty one (181) days after the later of the Revolving Credit Maturity Date and the Term Loan Maturity Date (it being understood that neither (A) any provision requiring an offer to purchase Permitted Convertible Indebtedness as a result of a change of control or asset sale or other fundamental change nor (B) any early conversion of any Permitted Convertible Indebtedness in accordance with the terms of the documentation governing such Permitted Convertible Indebtedness shall violate the foregoing restriction), and (iiiv) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect Net Cash Proceeds thereof are applied to the issuance of any such Subordinated Indebtedness; provided, that no agreement or instrument with respect to Indebtedness permitted to be incurred extent required by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower to make any payment and pursuant to the Borrower or any Guarantor (in the form terms of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrower to pay the ObligationsSection 4.4(b)(iii).
Appears in 1 contract
Limitations on Indebtedness. Create(a) The Company will not Incur, incurand the Company will not permit any Restricted Subsidiary to Incur, assume directly or suffer to exist indirectly, any Indebtedness exceptor Disqualified Stock if, on the date of such Incurrence and after giving effect thereto, the Consolidated Leverage Ratio exceeds 2.0 to 1.0.
(b) Notwithstanding the foregoing paragraph (a), the Company and its Restricted Subsidiaries may Incur the following Indebtedness:
(1) Permitted Warehouse Indebtedness and Guarantees by the Company of any Permitted Warehouse Indebtedness of Restricted Subsidiaries, provided that (i) on the date of such Incurrence and giving effect to any such Incurrence, the aggregate principal amount of Permitted Warehouse Indebtedness permitted under this clause (1), together with the amount of all then outstanding Warehouse Indebtedness (other than Permitted Warehouse Indebtedness) of the Company and its Restricted Subsidiaries permitted under clause (a) above, shall not exceed 300% of Consolidated Net Worth at such time, and (ii) that to the extent any such Indebtedness ceases to constitute Permitted Warehouse Indebtedness of the Company or a Restricted Subsidiary, such event shall be deemed to constitute the Incurrence of such Indebtedness (and any such Guarantees, but without duplication) by the Company or such Subsidiary, as the case may be;
(2) the Notes and the Subsidiary Guarantees;
(3) Hedging Obligations directly related to: (excluding Specified Hedge Obligations i) Indebtedness permitted to be Incurred by the Company or the Restricted Subsidiaries pursuant to Section 10.1(b)this Section; (ii) Receivables held by the Company or its Restricted Subsidiaries pending sale or that have been sold pursuant to a Warehouse Facility; or (iii) Receivables with respect to which the Company or any Restricted Subsidiary has an outstanding purchase or offer commitment, financing commitment or security interest;
(4) Indebtedness outstanding on the Issue Date (other than Permitted Warehouse Indebtedness and Guarantees thereof, which shall be permissible under this paragraph (b) only pursuant to clause (1) above);
(b5) Indebtedness incurred in connection with or Disqualified Stock issued to and held by the Company or a Hedging Agreement which is entered into for interest rate, foreign currency, commodity or other business purposes and not for speculative purposes, with a counterparty reasonably satisfactory to the Administrative AgentWholly Owned Restricted Subsidiary; provided, however, that any counterparty subsequent issuance or transfer of any Capital Stock that is results in any such Wholly Owned Restricted Subsidiary ceasing to be a Lender Wholly Owned Restricted Subsidiary or an Affiliate thereof shall be deemed satisfactory any subsequent transfer of such Indebtedness or Disqualified Stock (other than to the Administrative Agent;
(cCompany or a Wholly Owned Restricted Subsidiary) will be deemed, in each case, to constitute the Incurrence of such Indebtedness existing on or issuance of such Disqualified Stock by the Closing Date and not otherwise permitted under this Section, as set forth on Schedule 6.1(t), and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) issuer thereof;
(d6) Indebtedness or Disqualified Stock of a Restricted Subsidiary Incurred on or prior to the date on which such Subsidiary was acquired by the Company, other than Indebtedness or Disqualified Stock Incurred in connection with, or to provide all or any portion of the Borrower and its Subsidiaries incurred in connection with Capital Leases in an aggregate amountfunds or credit support utilized to consummate, together with the aggregate amount transaction or series of all purchase money Indebtedness of the Borrower and its Subsidiaries incurred related transactions pursuant to subsection (e) belowwhich such Subsidiary became a Subsidiary or was acquired by the Company; provided, not to exceed $20,000,000 however, that on any the date of determination;
(e) purchase money such acquisition and after giving effect thereto, the Company would have been able to Incur at least $1.00 of Indebtedness of the Borrower and its Subsidiaries with respect to the purchase of Equipment in an aggregate amount, together with the aggregate amount of all Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (d) above, not to exceed $20,000,000 on any date of determination;
(f) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Parties;
(g) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections paragraph (a) through (e) of this Sectionabove; provided that neither the Borrower nor any Guarantor shall be permitted to incur Guaranty Obligations under this subsection (g) with respect to Indebtedness of any Subsidiary that is not a Guarantor ;and
(h7) Indebtedness owed by (i) any Guarantor to the Borrower, (ii) the Borrower to any Guarantor, (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor to the Borrower or any Guarantor in an amount not to exceed $500,000, or (vi) the Borrower or any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,000;
(i) Indebtedness incurred pursuant to the issuance of Qualified Senior Unsecured Notes; provided that in the case of each issuance of such Indebtedness, (i) while no Default or Event of Default exists, Refinancing Indebtedness in respect of Indebtedness Incurred pursuant to paragraph (a) or clause (4) or (6) of this paragraph (b).
(c) Notwithstanding the foregoing, (i) the Company and its Restricted Subsidiaries may not Incur any Indebtedness (other than the Notes and the Subsidiary Guarantees) if such Indebtedness is subordinate or junior in ranking in any respect to any Senior Indebtedness unless such Indebtedness is a Junior Subordinated Obligation, (ii) the Company and its Restricted Subsidiaries shall have occurred not Incur any Indebtedness if the proceeds thereof are used, directly or indirectly, to Refinance any Junior Subordinated Obligations unless such Indebtedness shall be subordinated to the Notes or the Subsidiary Guarantees, as applicable, to at least the same extent as such Junior Subordinated Obligations, and (iii) no Restricted Subsidiary that is not a Subsidiary Guarantor shall incur, directly or indirectly, any Indebtedness. Unsecured Indebtedness is not deemed to be subordinate or junior to secured Indebtedness merely because it is unsecured.
(d) For purposes of determining compliance with the foregoing: (i) in the event that an item of Indebtedness meets the criteria of more than one of the types of Indebtedness described above, the Company, in good faith, will classify such item of Indebtedness and be continuing or would be caused by required to include the issuance amount and type of such Indebtedness in one of the above clauses; and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would an item of Indebtedness may be divided and classified in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Indebtedness; and
(j) unsecured Subordinated Indebtedness; provided that in the case of each issuance of such Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Subordinated Indebtedness; provided, that no agreement or instrument with respect to Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary more than one of the Borrower to make any payment to the Borrower or any Guarantor (in the form types of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrower to pay the ObligationsIndebtedness described above.
Appears in 1 contract
Samples: Indenture (Mego Mortgage Corp)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations (excluding Specified Hedge Hedging Obligations permitted pursuant to Section 10.1(b11.1(b));
(b) Indebtedness incurred in connection with a Hedging Agreement which is entered into for interest rate, foreign currency, commodity or other business purposes and not for non-speculative purposes; provided that if the Hedging Obligations pursuant to any such Hedging Agreement relate to interest rates, with a counterparty reasonably satisfactory (i) such Hedging Obligations relate to payment obligations on Indebtedness otherwise permitted to be incurred by the Administrative Agent; provided, that any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory Loan Documents and (ii) the notional principal amount of such Hedging Obligations at the time incurred does not exceed the principal amount of the Indebtedness to the Administrative Agentwhich such Hedging Obligations relate;
(c) Indebtedness existing on the Closing Effective Date and not otherwise permitted under this Section, as set forth listed on Schedule 6.1(t7.1(t), and any refinancings, refundings, renewals or extensions thereof; provided that (i) the renewal, principal amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by accrued but unpaid interest on the refinanced Indebtedness and replacement an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (but ii) any refinancing, refunding, renewal or extension of any Subordinated Indebtedness shall be (A) on subordination terms at least as favorable to the Lenders as, and no more restrictive on Holdings and its Subsidiaries than, the Subordinated Indebtedness being refinanced, refunded, renewed or extended and (B) in a principal amount not less than the increase in principal amount outstanding at the aggregate principal amount) thereoftime of such refinancing, refunding, renewal or extension;
(d) Indebtedness of the Borrower Holdings and its Subsidiaries incurred in connection with Capital Leases Leases, purchase money Indebtedness or mortgage financings of Holdings and its Subsidiaries, and any refinancings, refundings, renewals or extensions thereof meeting the conditions set forth in the proviso to clause 11.1(c), in an aggregate amount, together with the aggregate amount of all purchase money Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (e) below, not to exceed $20,000,000 10,000,000 on any date of determination;
(e) purchase money Indebtedness of a Person existing at the Borrower and its Subsidiaries with respect time such Person became a Subsidiary or assets were acquired from such Person, to the purchase extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Subsidiary or the acquisition of Equipment in an aggregate amount, together with the aggregate amount of all Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (d) abovesuch assets, not to exceed in the aggregate at any time outstanding $20,000,000 5,000,000 and any refinancings, refundings, renewals or extensions thereof; provided that (i) the principal amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to the accrued but unpaid interest on such refinanced Indebtedness and 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 date existing commitments unutilized thereunder and (ii) any refinancing, refunding, renewal or extension of determinationany Subordinated Indebtedness shall be (A) on subordination terms at least as favorable to the Lenders as, and no more restrictive on Holdings and its Subsidiaries than the Subordinated Indebtedness being refinanced, refunded, renewed or extended and (B) in a principal amount not less than the principal amount outstanding at the time of such refinancing, refunding, renewal or extension;
(f) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured PartiesLenders;
(g) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a) through (ed) and (j) through (m) of this Section; provided that neither the Borrower nor (i) any Guarantor shall be permitted to incur Guaranty Obligations under this subsection (g) with respect to Indebtedness permitted pursuant to clause (j) of this Section shall be considered an investment in the Foreign Subsidiary and shall be permitted under this clause (g) only to the extent such investment is permitted under Section 11.3 and (ii) any Guaranty Obligation with respect to Indebtedness permitted pursuant to clause (k) of this Section shall be subordinated to the same extent as the subordination of such Indebtedness;
(h) Indebtedness of (i) any Credit Party owed to another Credit Party, (ii) any Credit Party owed to a Subsidiary that is not a Credit Party, (iii) any Subsidiary that is not a Guarantor ;
(h) Indebtedness Credit Party owed by (i) any Guarantor to the Borrower, (ii) the Borrower to any Guarantor, (iii) any Guarantor to any other Guarantor, Credit Party and (iv) any Subsidiary that is not a Guarantor Credit Party owed to any other Subsidiary that is not a GuarantorCredit Party; provided that (i) the aggregate amount of Indebtedness permitted by clause (iii) of this Section 11.1(h), together with the aggregate amount of investments permitted pursuant to Section 11.3(p), shall not exceed $10,000,000, (vii) all such intercompany Indebtedness of a Credit Party owed to a Subsidiary that is not a Credit Party shall be unsecured and (subject to any limitation under laws applicable to such Subsidiary that is not a Credit Party, its directors or its stockholders) subordinated in right of payment to the payment in full in cash of the Obligations solely in connection with any bankruptcy, insolvency or liquidation proceeding and (iii) if any intercompany Indebtedness of any Subsidiary that is not a Guarantor Credit Party owed to any Credit Party is represented by a physical note, such note shall be pledged to the Borrower or any Guarantor in an amount not to exceed $500,000, or (vi) Administrative Agent for the Borrower or any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,000benefit of the Secured Parties;
(i) Indebtedness incurred pursuant to the issuance secured by Liens permitted by clause (j) of Qualified Senior Unsecured NotesSection 11.2; provided that such Indebtedness is extinguished within five (5) Business Days of its incurrence;
(j) Indebtedness of Foreign Subsidiaries in an aggregate principal amount not exceeding $7,500,000 at any date of determination;
(k) additional Subordinated Indebtedness of Holdings or any of its Subsidiaries in an aggregate amount outstanding not to exceed $15,000,000; provided that, in the case of each issuance of such Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Indebtedness; and
(j) unsecured Subordinated Indebtedness; provided that in the case of each issuance of such Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness Indebtedness, and (ii) the Administrative Agent shall have received reasonably satisfactory written evidence that the Borrower Credit Parties would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Subordinated Indebtedness;
(l) additional unsecured Indebtedness of Borrower or any of its Subsidiaries not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed $30,000,000; providedand
(m) Indebtedness pursuant to the Senior Subordinated Note Documents; and any refinancings, refundings, renewals or extensions thereof; provided that (i) the principal amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to the accrued but unpaid interest on such refinanced Indebtedness and a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms of any such refinancings, refundings, renewals or extensions thereof, taken as a whole, are no less favorable to the Lenders or Borrower; provided that, except as provided in Section 11.11, no agreement or instrument with respect to Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower to make any payment to the Borrower or any Guarantor of its Wholly-Owned Subsidiaries (in the form of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrower to pay the Obligations.
Appears in 1 contract
Samples: Credit Agreement (PAS, Inc.)
Limitations on Indebtedness. CreateThe Company will not, incurand will not permit any Subsidiary to, create, assume or suffer to exist incur any Indebtedness except:
(a1) Indebtedness evidenced by the Obligations (excluding Specified Hedge Obligations permitted pursuant to Section 10.1(b))Notes;
(b2) Indebtedness incurred in connection with a Hedging under the Credit Agreement which is entered into for interest rate, foreign currency, commodity or other business purposes and not for speculative purposes, with a counterparty reasonably satisfactory to the Administrative Agent; provided, that any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Closing Date and not otherwise permitted under this Section, as set forth on Schedule 6.1(t), and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(d) Indebtedness of the Borrower and its Subsidiaries incurred in connection with Capital Leases in an aggregate amount, together with the aggregate amount of all purchase money Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (e) below, not to exceed $20,000,000 on 35,000,000 in principal amount outstanding at any date of determination;
(e) purchase money one time; provided, however, such Indebtedness may exceed $35,000,000 if the consolidated EBITDA of the Borrower Company and its Subsidiaries with respect to the purchase of Equipment in an aggregate amountSubsidiaries, together with the aggregate amount of all Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (d) above, not to exceed $20,000,000 on any date of determination;
(f) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Parties;
(g) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a) through (e) of this Section; provided that neither the Borrower nor any Guarantor shall be permitted to incur Guaranty Obligations under this subsection (g) with respect to Indebtedness of any Subsidiary that is not a Guarantor ;
(h) Indebtedness owed by (i) any Guarantor to the Borrower, (ii) the Borrower to any Guarantor, (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor to the Borrower or any Guarantor in an amount not to exceed $500,000, or (vi) the Borrower or any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,000;
(i) Indebtedness incurred pursuant to the issuance of Qualified Senior Unsecured Notes; provided that in the case of each issuance of such Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect for the twelve-month period ending on the last day of the calendar quarter immediately preceding the date of such incurrence equals or exceeds 1.75 times the amount of the projected consolidated net interest expense (before amortization of debt issuance costs) of the Company and its Subsidiaries for the twelve-month period immediately following the incurrence of such additional Indebtedness;
(3) Indebtedness of the Company and its Subsidiaries outstanding as of the date of this Agreement;
(4) Indebtedness relating to insurance premium financing or in respect of workers' compensation claims, in each case incurred in the ordinary course of business;
(5) Indebtedness relating to the issuance Company's and its Subsidiaries' controlled disbursement accounts or in respect of overdrafts of zero balance bank accounts, in each case incurred in the ordinary course of business;
(6) Indebtedness in respect of Capitalized Lease Obligations or purchase money financings (including the purchase price of inventory); provided that such Indebtedness is secured only by the applicable asset;
(7) Indebtedness between a Subsidiary and the Company or between Subsidiaries;
(8) Indebtedness represented by surety and performance bonds and similar obligations, in each case incurred in the ordinary course of business;
(9) Hedging Obligations of the Company or a Subsidiary incurred in the ordinary course of business;
(10) Notwithstanding any such Indebtednessamounts incurred under clauses (1) through (9) of this Section 5.5, additional Indebtedness of the Company and its Subsidiaries outstanding at any time that does not exceed in the aggregate an amount equal to
(i) $75,000,000 less (ii) the aggregate principal amount of Notes then outstanding; and
(j11) unsecured Subordinated IndebtednessIndebtedness issued or incurred in connection with the renewal, expansion or refunding of Indebtedness permitted by the preceding clauses (1) through (10) of this Section 5.5; provided that in the case of each issuance any expansion of such Subordinated Indebtedness, Indebtedness would otherwise satisfy the conditions of one of the other clauses (i1) no Default or Event through (10) of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Subordinated Indebtedness; provided, that no agreement or instrument with respect to Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower to make any payment to the Borrower or any Guarantor (in the form of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrower to pay the Obligations5.5.
Appears in 1 contract
Samples: Note Agreement (Family Restaurants)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) The Borrower will not, and will not permit any of the Obligations (excluding Specified Hedge Obligations permitted pursuant Restricted Subsidiaries to, Incur any Indebtedness or issue any Disqualified Stock, and the Borrower will not permit any of the Restricted Subsidiaries to Section 10.1(b));issue any shares of Preferred Stock.
(b) Indebtedness incurred in connection with a Hedging Agreement which is entered into for interest rate, foreign currency, commodity or other business purposes and The provisions of Section 7.11(a) will not for speculative purposes, with a counterparty reasonably satisfactory to prohibit the Administrative Agent; provided, that any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to the Administrative Agent;Incurrence of Permitted Debt.
(c) Indebtedness existing on the Closing Date and not otherwise permitted under this Section, as set forth on Schedule 6.1(t), and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;[reserved].
(d) Indebtedness For purposes of determining compliance with any dollar-denominated restriction on the Incurrence of Indebtedness, the Dollar Equivalent of the Borrower and its Subsidiaries incurred in connection with Capital Leases in an aggregate amount, together with the aggregate principal amount of all purchase money Indebtedness denominated in another currency will be utilized, calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was Incurred, in the case of term Indebtedness, or first committed, in the case of Indebtedness Incurred under a revolving credit facility; provided that (i) if such Indebtedness is Incurred to refinance other Indebtedness denominated in a currency other than dollars, and such refinancing would cause the applicable dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such dollar-denominated restriction will be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced and (ii) the Dollar Equivalent of the Borrower and its Subsidiaries incurred pursuant to subsection principal amount of any such Indebtedness outstanding on the Effective Date will be calculated based on the relevant currency exchange rate in effect on the Effective Date.
(e) belowNotwithstanding any other provision of this covenant, the maximum amount of Indebtedness that the Borrower or the applicable Restricted Subsidiary may Incur pursuant to this covenant shall not be deemed to exceed $20,000,000 be exceeded solely as a result of fluctuations in exchange rates or currency values. The amount of any Indebtedness outstanding as of any date will be:
(1) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;
(2) the principal amount of the Indebtedness, in the case of any other Indebtedness; and
(3) in respect of Indebtedness of another Person secured by a Lien on any the assets of the specified Person, the lesser of:
(f) the Fair Market Value of such assets at the date of determination;
(eg) purchase money the amount of the Indebtedness of the Borrower and its Subsidiaries with respect to the purchase of Equipment in an aggregate amount, together with the aggregate amount of all Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (d) above, not to exceed $20,000,000 on any date of determination;other Person; and
(f1) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Parties;
(g) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a) through (e) of this Section; provided that neither the Borrower nor any Guarantor shall be permitted to incur Guaranty Obligations under this subsection (g) with respect to Indebtedness of any Subsidiary that is not a Guarantor ;
(h) Indebtedness owed by (i) any Guarantor to the Borrower, (ii) the Borrower to any Guarantor, (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor to the Borrower or any Guarantor in an amount not to exceed $500,000, or (vi) the Borrower or any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,000;
(i) Indebtedness incurred pursuant to the issuance of Qualified Senior Unsecured Notes; provided that in the case of each issuance Hedging Obligations, the termination value of the agreement or arrangement giving rise to such Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or Hedging Obligations that would be caused payable by the issuance of specified Person at such Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Indebtedness; and
(j) unsecured Subordinated Indebtedness; provided that in the case of each issuance of such Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Subordinated Indebtedness; provided, that no agreement or instrument with respect to Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower to make any payment to the Borrower or any Guarantor (in the form of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrower to pay the Obligationsdate.
Appears in 1 contract
Samples: Superpriority Secured Debtor in Possession Term Loan Agreement (Pacific Drilling S.A.)
Limitations on Indebtedness. CreateThe Obligors will not, and will not permit any of their respective Subsidiaries to, directly or indirectly, create, incur, assume or suffer permit to exist any Indebtedness or any preferred Equity Interests, except:
(ai) Indebtedness created hereunder or under the Obligations Transaction Documents;
(excluding Specified Hedge Obligations permitted ii) Indebtedness of a Loan Party (as defined in the Bank Credit Agreement) in respect of amounts outstanding (including all amounts due, contingently or otherwise, in respect of reimbursement obligations under letters of credit or similar instruments and all related reimbursement agreements) under the Bank Credit Documents, not in excess of the result of (A) $600,000,000 (subject to further increase of up to $300,000,000 pursuant to Section 10.1(b2.04 of the Bank Credit Agreement so long as no Event of Default is continuing at the time of any such increase), minus (B) the aggregate amount of any permanent reductions in the principal amount of the commitments under the revolving credit facility established thereunder and Indebtedness incurred in substitution, refinancing or replacement of such Indebtedness; provided that (x) the terms, covenants and restrictions in respect of such substitutions, refinancings and replacements are not more materially onerous than the existing terms, covenants and restrictions of such Indebtedness being substituted, refinanced or replaced, (y) the aggregate principal amount of the Indebtedness of the Loan Parties (as defined in the Bank Credit Agreement) under this clause (ii) shall not at any time exceed $900,000,000, and (z) the aggregate principal amount of all Indebtedness of Foreign Borrowers under this clause (ii) shall not at any time exceed the Foreign Borrower Sublimit (as defined in the Bank Credit Agreement);
(b) Indebtedness incurred in connection with a Hedging Agreement which is entered into for interest rate, foreign currency, commodity or other business purposes and not for speculative purposes, with a counterparty reasonably satisfactory to the Administrative Agent; provided, that any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to the Administrative Agent;
(ciii) Indebtedness existing on the Closing Effective Date and not otherwise permitted under this Section, as set forth on in Schedule 6.1(t6D and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (except by the amount of any accrued interest and premiums with respect to such Indebtedness and transaction fees, costs and expenses in connection with such extension, renewal or replacement thereof), and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(div) Indebtedness of the Borrower and its Subsidiaries incurred in connection with Capital Leases in an aggregate amount, together with the aggregate amount one Credit Party or a Subsidiary of all purchase money Indebtedness a Credit Party to another Credit Party or Subsidiary of the Borrower and its Subsidiaries incurred pursuant to subsection (e) below, not to exceed $20,000,000 on any date of determination;
(e) purchase money Indebtedness of the Borrower and its Subsidiaries with respect to the purchase of Equipment in an aggregate amount, together with the aggregate amount of all Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (d) above, not to exceed $20,000,000 on any date of determination;
(f) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Parties;
(g) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a) through (e) of this Sectiona Credit Party; provided that neither the Borrower nor any Guarantor such Indebtedness (A) shall not be permitted to incur Guaranty Obligations under this subsection prohibited by paragraph 6M and (gB) with respect to Indebtedness of owing by any Subsidiary that is not a Guarantor ;
(h) Indebtedness owed by (i) any Guarantor to the Borrower, (ii) the Borrower to any Guarantor, (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor to the Borrower or any Guarantor in an amount not to exceed $500,000, or (vi) the Borrower or any Guarantor Credit Party to any Subsidiary that is not a Guarantor Credit Party shall be subject to the provisions of the Subordination Agreement as Subordinated Debt (as defined in an amount not the Subordination Agreement) and each Credit Party or other Subsidiary to exceed $500,000whom such Indebtedness is owed shall be party to the Subordination Agreement as a Subordinated Creditor (as defined in the Subordination Agreement);
(iv) Indebtedness of any Credit Party or a Subsidiary of a Credit Party incurred pursuant to finance the acquisition, construction or improvement of any fixed or capital assets, including purchase money Indebtedness and Capitalized Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the issuance acquisition thereof, and extensions, renewals and replacements of Qualified Senior Unsecured Notesany such Indebtedness that do not increase the outstanding principal amount thereof; provided that (A) such Indebtedness is incurred prior to or within 180 days (and in the case of industrial revenue bonds, 360 days) after such acquisition or the completion of such construction or improvement and (B) the aggregate principal amount of Indebtedness permitted by this clause (v) shall not exceed $50,000,000 at any time outstanding;
(vi) Indebtedness of any Person that becomes a Subsidiary after the date hereof other than as a result of a Division; provided that (A) such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary and (B) after giving effect to such Person becoming a Subsidiary, the Obligors shall be in compliance with the covenants set forth in paragraphs 6K and 6L on a Pro Forma Basis;
(vii) [intentionally omitted];
(viii) [intentionally omitted];
(ix) Indebtedness in respect of Swap Agreements permitted under paragraph 6N;
(x) preferred stock of any Subsidiary issued on or prior to the Effective Date;
(xi) Indebtedness of, or preferred stock issued by, any Subsidiary to the Parent or any other Subsidiary and permitted under paragraph 6M;
(xii) contingent obligations in respect of customary indemnification and purchase price adjustment obligations incurred in connection with Dispositions of properties or assets or with purchases of properties or assets permitted hereunder;
(xiii) Guarantees in respect of any Indebtedness permitted pursuant to this paragraph 6D if such guaranteeing Person would be permitted to incur such Indebtedness under this paragraph 6D;
(xiv) obligations in respect of performance bonds and completion, guarantee, surety and similar bonds, in each issuance case obtained in the ordinary course of business to support statutory and contractual obligations (other than Indebtedness) arising in the ordinary course of business;
(xv) Indebtedness arising from the honoring of a bank or other financial institution of a check, draft or other similar instrument drawn against insufficient funds in the ordinary course of business;
(xvi) Indebtedness arising from the endorsement of items for deposit or collection of commercial paper received in the ordinary course of business;
(xvii) Indebtedness incurred in connection with the financing of insurance premiums; and
(xviii) (A) other Indebtedness so long as both before and after giving effect to the incurrence of such Indebtedness, (i1) no Default or Event of Default shall have occurred and shall be continuing or would be caused by the issuance of such Indebtedness and (ii2) the Administrative Agent Obligors shall have received satisfactory written evidence that the Borrower would be in compliance with all the covenants contained set forth in this Agreement paragraphs 6K and 6L on a pro forma basis after giving effect to the issuance Pro Forma Basis, and (B) extensions, renewals and replacements of any such Indebtedness; and
Indebtedness incurred pursuant to clause (jA) unsecured Subordinated Indebtednessthat do not increase the outstanding principal amount thereof (except by the amount of any accrued interest and premiums with respect to such Indebtedness and transaction fees, costs and expenses in connection with such extension, renewal or replacement thereof); provided that that, in the case of each clauses (A) and (B) above, the covenants, representations and defaults governing such Indebtedness shall not be more restrictive (taken as a whole) than those applicable to the Notes hereunder, except to the extent (1) this Agreement shall be modified to grant the Notes the benefit of such more restrictive provisions, (2) applicable solely to periods after the latest maturity date of the latest maturing Notes hereunder outstanding at the time of incurrence or issuance of such Subordinated Indebtedness, refinancing Indebtedness or (i3) no Default or Event of Default shall have occurred and be continuing or would be caused as otherwise agreed by the issuance of such Subordinated Indebtedness and (ii) Required Holders in their reasonable discretion. Notwithstanding anything to the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained contrary in this Agreement on a pro forma basis after giving effect to paragraph 6D, the issuance aggregate outstanding principal amount of all Indebtedness of all Subsidiaries (other than Credit Parties) shall not exceed $175,000,000 at any such Subordinated Indebtedness; provided, that no agreement or instrument with respect to Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower to make any payment to the Borrower or any Guarantor (in the form of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrower to pay the Obligationstime.
Appears in 1 contract
Samples: Note Purchase and Private Shelf Agreement (Lci Industries)
Limitations on Indebtedness. CreateDirectly or indirectly create, incur, assume or suffer otherwise become directly or indirectly liable with respect to exist any Indebtedness exceptexcept for the following:
(a) the Obligations (excluding Specified Hedge Obligations permitted Indebtedness incurred by any Loan Party or Escrow Subsidiary pursuant to Section 10.1(b));the Term Loan Facility and Indebtedness incurred by any Loan Party otherwise than pursuant to the Term Loan Facility (including pursuant to any Additional Obligations Documents, any Permitted Debt Exchange or any Rollover Indebtedness but not pursuant to the Loan Documents) in an aggregate principal amount at any time outstanding not to exceed (A) $325,000,000 plus (B) the Maximum Incremental Facilities Amount.
(b) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred in connection with a Hedging pursuant to this Agreement which is entered into for interest rateand the other Loan Documents (including any Incremental Facility, foreign currency, commodity Extension or other business purposes and not for speculative purposes, with a counterparty reasonably satisfactory to the Administrative Agent; provided, that any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to the Administrative AgentCredit Agreement Refinancing Indebtedness);
(c) Unsecured Indebtedness existing on of the Closing Date and not otherwise permitted under this Section, as set forth on Schedule 6.1(t), and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereofParent Borrower or any of its Restricted Subsidiaries;
(d) Indebtedness of (other than Indebtedness permitted by clauses (a) through (c) above) existing on the Borrower Closing Date, and its Subsidiaries incurred in connection with Capital Leases in an aggregate amountdisclosed on Schedule 8.13(d), together with the aggregate amount of all purchase money Indebtedness of the Borrower and its Subsidiaries incurred any renewal, extension, refinancing or refunding pursuant to subsection clause (ei) below, not to exceed $20,000,000 on any date of determination;
(e) purchase money Secured Indebtedness of the Parent Borrower and or any of its Restricted Subsidiaries with respect to the purchase of Equipment in an aggregate amount, together with the aggregate principal amount of all Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (d) above, at any time outstanding not to exceed the greater of (x) $20,000,000 on any date 150,000,000 and (y) 6.25% of determinationConsolidated Total Assets and only so long as the Liens securing such Indebtedness are incurred under and in compliance with Subsection 8.14(p);
(f) Guaranty Guarantee Obligations incurred by:
(i) the Parent Borrower or any of its Restricted Subsidiaries in respect of Indebtedness of a Loan Party that is permitted hereunder; provided that Guarantee Obligations in favor respect of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Parties;
(g) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections clauses (a), (c) through and (em) of this Section; provided that neither the Borrower nor any Guarantor shall be permitted to incur Guaranty Obligations under this subsection (g) with respect to Indebtedness of any Subsidiary that is not a Guarantor ;
(h) Indebtedness owed by (i) any Guarantor only to the Borrowerextent that such Guarantee Obligations are incurred by Guarantors (other than, in the case of clause (ii) the Borrower to m), Guarantee Obligations incurred by any Guarantor, (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Foreign Subsidiary that is not a Guarantor);
(ii) the Parent Borrower or any of its Restricted Subsidiaries in respect of lease obligations of Non-Loan Parties (to the extent such lease obligations constitute Indebtedness);
(iii) a Non-Loan Party in respect of Indebtedness of another Non-Loan Party that is permitted hereunder;
(iv) the Parent Borrower or any of its Restricted Subsidiaries in respect of Indebtedness of any Person; provided that the aggregate amount at any time outstanding of such Guarantee Obligations incurred pursuant to this clause (iv), when aggregated with the amount of all other Guarantee Obligations incurred and outstanding pursuant to this clause (iv) and all Indebtedness incurred and outstanding pursuant to clause (w) of this Subsection 8.13, shall not exceed the greater of (x) $195,000,000 and (y) 11.50% of Consolidated Total Assets at the time of such Guarantee Obligations being incurred;
(v) any Subsidiary that is not a Guarantor to the Parent Borrower or any Guarantor of its Restricted Subsidiaries in an amount not connection with sales or other dispositions permitted under Subsection 8.5, including indemnification obligations with respect to exceed $500,000leases, and guarantees of collectability in respect of accounts receivable or notes receivable for up to face value;
(vi) the Parent Borrower or any Guarantor to of its Restricted Subsidiaries consisting of accommodation guarantees for the benefit of trade creditors of the Parent Borrower or any Subsidiary that is not a Guarantor of its Restricted Subsidiaries in an amount not to exceed $500,000the ordinary course of business;
(ivii) Indebtedness incurred the Parent Borrower or any of its Restricted Subsidiaries in respect of Investments expressly permitted pursuant to the issuance of Qualified Senior Unsecured Notes; provided that in the case of each issuance of such Indebtednessclause (c), (ij), (l), (m) no Default or Event (v) of Default shall have occurred and be continuing the definition of “Permitted Investments”;
(viii) the Parent Borrower or would be caused by the issuance any of such Indebtedness its Restricted Subsidiaries in respect of (x) Management Guarantees and (iiy) third-party loans and advances to officers or employees of any Parent Entity or the Parent Borrower or any of its Restricted Subsidiaries permitted pursuant to clause (l) or (m) of the definition of “Permitted Investments”;
(ix) the Administrative Agent shall have received satisfactory written evidence that the Parent Borrower would be or any of its Restricted Subsidiaries in compliance respect of Reimbursement Obligations in respect of Letters of Credit or with all covenants contained respect to reimbursement obligations in this Agreement on a pro forma basis after giving effect to the issuance respect of any such Indebtednessother letters of credit permitted under this Agreement;
(x) the Parent Borrower or any of its Restricted Subsidiaries in respect of performance, bid, appeal, surety, judgment, replevin and similar bonds, other suretyship arrangements, other similar obligations and letters of credit, bankers’ acceptances or similar instruments or obligations, all in, or relating to liabilities or obligations incurred in, the ordinary course of business; and
(jxi) unsecured Subordinated Indebtedness; provided that the Parent Borrower or any of its Restricted Subsidiaries in respect of Indebtedness or other obligations of a Person in connection with a joint venture or similar arrangement in respect of which the case aggregate outstanding amount of each issuance of all such Subordinated Indebtedness, together with the aggregate outstanding amount of Investments permitted pursuant to clause (q) of the definition of “Permitted Investments”, does not exceed the greater of (x) $20,000,000 and (y) 0.85% of Consolidated Total Assets; provided, however, that if any Indebtedness referred to in clauses (i) no Default or Event through (iv) above is subordinated in right of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Subordinated Indebtedness; provided, that no agreement or instrument with respect to Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower to make any payment to the Borrower Obligations or is secured by Liens that are senior or subordinate to any Guarantor (in Liens securing the form of dividendsCollateral, intercompany advances then any corresponding Guarantee Obligations shall be subordinated and the Liens securing the corresponding Guarantee Obligations shall be senior or otherwise) for subordinate to substantially the purpose of enabling the Borrower to pay the Obligations.same extent;
Appears in 1 contract
Limitations on Indebtedness. Create(a) The Company will not, incurand will not permit any Subsidiary to, assume create, issue, assume, guarantee or suffer to exist otherwise incur or in any Indebtedness manner be or become liable in respect of any Indebtedness, except:
(ai) Indebtedness evidenced by the Obligations (excluding Specified Hedge Obligations permitted pursuant to Section 10.1(b))Notes and the Subsidiary Guaranty;
(bii) Indebtedness incurred in connection with of a Hedging Agreement which is entered into for interest rate, foreign currency, commodity or other business purposes and not for speculative purposes, with a counterparty reasonably satisfactory Subsidiary Guarantor evidenced by the Guaranty delivered pursuant to the Administrative AgentBank Credit Agreement; provided, provided that the Indebtedness evidenced by any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to the Administrative Agentsuch Guaranty constitutes Qualified Subsidiary Indebtedness;
(c) Indebtedness existing on the Closing Date and not otherwise permitted under this Section, as set forth on Schedule 6.1(t), and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(diii) Indebtedness of the Borrower Company and its Subsidiaries incurred outstanding as of the date of this Agreement and described on SCHEDULE 5.15 hereto;
(iv) additional Indebtedness of the Company and its Subsidiaries; provided that at the time of creation, issuance, assumption, guarantee or incurrence thereof and after giving effect thereto and to the application of the proceeds thereof:
(1) the ratio of Consolidated Indebtedness to Consolidated Total Assets as at such date shall not exceed 0.45 to 1.00; and
(2) in connection with Capital Leases in an aggregate amountthe case of the issuance of any Indebtedness of the Company or its Subsidiaries secured by Liens permitted by SECTION 10.6(I) and any Indebtedness of a Subsidiary (other than (A) Qualified Subsidiary Indebtedness and (B) Indebtedness of any Subsidiary described on SCHEDULE 5.15 and any renewal, together with extension, refinancing, replacement or refunding of such Indebtedness), the sum of (A) the aggregate amount of all purchase money Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection secured by Liens permitted by SECTION 10.6(I) plus (eB) below, not to exceed $20,000,000 on any date of determination;
(e) purchase money Indebtedness of the Borrower and its Subsidiaries with respect to the purchase of Equipment in an aggregate amount, together with the aggregate amount of all Indebtedness of the Borrower Subsidiaries (other than (A) Qualified Subsidiary Indebtedness and its Subsidiaries incurred pursuant to subsection (dB) above, not to exceed $20,000,000 on any date of determination;
(f) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Parties;
(g) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a) through (e) of this Section; provided that neither the Borrower nor any Guarantor shall be permitted to incur Guaranty Obligations under this subsection (g) with respect to Indebtedness of any Subsidiary that is described on SCHEDULE 5.15 and any renewal, extension, refinancing, replacement or refunding of such Indebtedness), shall not a Guarantor exceed 33% of Consolidated Total Assets as at such date;
(hv) Indebtedness owed by (i) any Guarantor of a Subsidiary to the Borrower, (ii) Company or to a Wholly-owned Subsidiary and Indebtedness of the Borrower Company to any Guarantor, (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor to the Borrower or any Guarantor in an amount not to exceed $500,000, or (vi) the Borrower or any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,000;
(i) Indebtedness incurred pursuant to the issuance of Qualified Senior Unsecured Notes; provided that in the case of each issuance of such Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such IndebtednessWholly-owned Subsidiary; and
(jvi) unsecured Subordinated Indebtedness; provided that Indebtedness evidenced by the 2002 Notes and the 2002 Subsidiary Guaranty.
(b) Indebtedness existing within the limitations of SECTION 10.5(A)(III) may be renewed, extended, refinanced, replaced or refunded (without increase in principal amount) without regard to the case limitations of each issuance SECTION 10.5(A)(IV).
(c) Any Person which becomes a Subsidiary after the date hereof shall for all purposes of this SECTION 10.5 be deemed to have created, issued, assumed or incurred at the time it becomes a Subsidiary all Indebtedness of such Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on Person existing immediately after it becomes a pro forma basis after giving effect to the issuance of any such Subordinated Indebtedness; provided, that no agreement or instrument with respect to Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower to make any payment to the Borrower or any Guarantor (in the form of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrower to pay the ObligationsSubsidiary.
Appears in 1 contract
Samples: Note Purchase Agreement (St Joe Co)
Limitations on Indebtedness. Create, incur, assume or suffer to exist (a) The Borrower will not at any Indebtedness excepttime permit:
(ai) The aggregate unpaid principal amount of Senior Debt, on a consolidated basis, to exceed 400% of the sum of (A) Consolidated Adjusted Net Worth, (B) the Obligations aggregate unpaid principal amount of Junior Subordinated Debt, and (excluding Specified Hedge Obligations permitted pursuant to Section 10.1(b))C) the aggregate unpaid principal amount of Senior Subordinated Debt;
(bii) Indebtedness incurred in connection with a Hedging Agreement which is entered into for interest rateThe sum of (A) the aggregate unpaid principal amount of Senior Subordinated Debt, foreign currency, commodity or other business purposes and not for speculative purposes, with a counterparty reasonably satisfactory (B) the aggregate unpaid principal amount of Junior Subordinated Debt to the Administrative Agentexceed 125% of Consolidated Adjusted Net Worth; provided, that any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to the Administrative Agent;or
(ciii) Indebtedness existing on The aggregate unpaid principal amount of Junior Subordinated Debt to exceed 50% of Consolidated Adjusted Net Worth; or
(iv) The aggregate amount of unused credit then available from the Closing Date and not otherwise permitted Banks under this Section, as set forth Agreement or otherwise from banks and trust companies under firmly committed lines of credit from a lending group of not fewer than two lenders to be less than the sum of the (A) aggregate outstanding amount of its commercial paper and (B) payments of principal then scheduled to become due during the eight-month period then commencing on Schedule 6.1(t), and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(d) all Indebtedness for Borrowed Money of the Borrower and its Restricted Subsidiaries incurred in connection with Capital Leases in an aggregate amount(excluding obligations under the Notes and this Agreement).
(b) The Borrower will not permit, together with (i) at any time on or before the aggregate amount Trigger Date, the ratio of all purchase money Indebtedness for Borrowed Money of the Borrower and its Restricted Subsidiaries incurred pursuant to subsection (e) below, not Consolidated Adjusted Net Worth to exceed $20,000,000 on 4.5 to 1 for any date month; provided that the ratio of determination;
(e) purchase money Indebtedness for Borrowed Money of the Borrower and its Restricted Subsidiaries with respect to Consolidated Adjusted Net Worth may exceed 4.5 to 1 for no more than 4 months of any consecutive 12-month period so long as such ratio does not exceed 5.5 to 1 at any such time, and (ii) at any time after the purchase Trigger Date, the ratio of Equipment in an aggregate amount, together with the aggregate amount of all Indebtedness for Borrowed Money of the Borrower and its Restricted Subsidiaries incurred pursuant to subsection (d) above, not Consolidated Adjusted Net Worth to exceed $20,000,000 on 5.5 to 1 for any date month; provided that the ratio of determination;Indebtedness for Borrowed Money of the Borrower and its Restricted Subsidiaries to Consolidated Adjusted Net Worth may exceed 5.5 to 1 for no more than 4 months of any consecutive 12-month period so long as such ratio does not exceed 6.5 to 1.
(fc) Guaranty Obligations The Borrower will not create, assume, or incur or otherwise become liable in favor respect of any Senior Subordinated Debt (other than the Senior Subordinated Notes) or Junior Subordinated Debt unless such Senior Subordinated Debt or Junior Subordinated Debt shall have a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Administrative Agent for the benefit Senior Subordinated Notes. For purposes of this Section 8.10, “Weighted Average Life to Maturity” of the Administrative Agent principal amount of any Indebtedness of the Borrower shall mean, as of the time of any determination thereof, the number of years obtained by dividing the then Remaining Dollar-years of such Indebtedness by the then outstanding principal amount of such Indebtedness; and the other Secured Parties;
(g) Guaranty Obligations with respect to “Remaining Dollar-years” of any Indebtedness permitted pursuant to subsections means at any time the amount obtained by (a) through multiplying the amount of each then remaining installment, sinking fund, serial maturity or other required principal payment, including payment at final maturity, by the number of years (e) of this Section; provided that neither the Borrower nor any Guarantor shall be permitted to incur Guaranty Obligations under this subsection (g) with respect to Indebtedness of any Subsidiary that is not a Guarantor ;
(h) Indebtedness owed by (i) any Guarantor calculated to the Borrower, (iinearest one-twelfth) which will elapse between the Borrower to any Guarantor, (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary time in question and the making of that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor to the Borrower or any Guarantor in an amount not to exceed $500,000, or (vi) the Borrower or any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,000;
(i) Indebtedness incurred pursuant to the issuance of Qualified Senior Unsecured Notes; provided that in the case of each issuance of such Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Indebtedness payment and (iib) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with totaling all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Indebtedness; and
(j) unsecured Subordinated Indebtedness; provided that in the case of each issuance of such Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Subordinated Indebtedness; provided, that no agreement or instrument with respect to Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower to make any payment to the Borrower or any Guarantor products obtained in (in the form of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrower to pay the Obligationsa).
Appears in 1 contract
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations (excluding Specified Hedge Hedging Obligations permitted pursuant to Section 10.1(b));
(b) Indebtedness incurred in connection with a Hedging Agreement; provided that if the Hedging Obligations pursuant to any such Hedging Agreement relate to interest rates, (i) such Hedging Obligations relate to payment obligations on Indebtedness otherwise permitted to be incurred by the Loan Documents and (ii) the notional principal amount of such Hedging Obligations at the time incurred does not exceed the principal amount of the Indebtedness to which is entered into for interest rate, foreign currency, commodity or other business purposes and not for speculative purposes, with a counterparty reasonably satisfactory to the Administrative Agent; provided, that any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to the Administrative Agentsuch Hedging Obligations relate;
(c) Indebtedness existing on the Closing Date and not otherwise permitted under this Section, as set forth listed on Schedule 6.1(t), and any refinancings, refundings, renewals or extensions thereof; provided that (i) the renewal, principal amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by accrued but unpaid interest on the refinanced Indebtedness and replacement (but not the increase in the aggregate principal amount) thereof;
(d) Indebtedness of the Borrower an amount equal to a reasonable premium or other reasonable amount paid, and its Subsidiaries incurred fees and expenses reasonably incurred, in connection with Capital Leases in such refinancing and by an aggregate amount, together with the aggregate amount of all purchase money Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (e) below, not to exceed $20,000,000 on any date of determination;
(e) purchase money Indebtedness of the Borrower and its Subsidiaries with respect to the purchase of Equipment in an aggregate amount, together with the aggregate amount of all Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (d) above, not to exceed $20,000,000 on any date of determination;
(f) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Parties;
(g) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a) through (e) of this Section; provided that neither the Borrower nor any Guarantor shall be permitted to incur Guaranty Obligations under this subsection (g) with respect to Indebtedness of any Subsidiary that is not a Guarantor ;
(h) Indebtedness owed by (i) any Guarantor to the Borrower, (ii) the Borrower equal to any Guarantor, (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor to the Borrower or any Guarantor in an amount not to exceed $500,000, or (vi) the Borrower or any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,000;
(i) Indebtedness incurred pursuant to the issuance of Qualified Senior Unsecured Notes; provided that in the case of each issuance of such Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Indebtedness existing commitments unutilized thereunder and (ii) the Administrative Agent any refinancing, refunding, renewal or extension of any Subordinated Indebtedness shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement (A) on a pro forma basis after giving effect subordination terms at least as favorable to the issuance of any such Indebtedness; and
Lenders as, and no more restrictive on Holdings and its Subsidiaries than, the Subordinated Indebtedness being refinanced, refunded, renewed or extended and (jB) unsecured Subordinated Indebtedness; provided that in a principal amount not less than the case of each issuance principal amount outstanding at the time of such Subordinated Indebtednessrefinancing, (i) no Default refunding, renewal or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Subordinated Indebtedness; provided, that no agreement or instrument with respect to Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower to make any payment to the Borrower or any Guarantor (in the form of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrower to pay the Obligations.extension;
Appears in 1 contract
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations (excluding Specified Hedge Hedging Obligations permitted pursuant to Section 10.1(b));
(b) Indebtedness incurred in connection with a Hedging Agreement which is entered into for interest rate, foreign currency, commodity or other business purposes and not for speculative purposes, with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided, that any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Closing Date and not otherwise permitted under this Section, as set forth listed on Schedule 6.1(t6.1(l), and the renewal, refinancing, refunding, extension and replacement (but not the increase in the aggregate principal amount) thereof; provided that any refinancing, refunding, extension or replacement of any Senior Unsecured Notes shall also be subject to the satisfaction of the requirements set forth in Section 10.1(k);
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Capital Leases in an aggregate amount, together with the aggregate amount of all purchase money Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (e) below, not to exceed $20,000,000 on any date of determinationLeases;
(e) purchase money Indebtedness of the Borrower and its Subsidiaries with respect Restricted Subsidiaries;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the purchase extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of Equipment in an aggregate amount, together with the aggregate amount of all Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (d) abovesuch assets, not to exceed in the aggregate at any time outstanding $20,000,000 100,000,000, and any refinancings, refundings, renewals or extensions thereof; provided that, any (i) such refinancings, refundings, renewals or extensions do not increase the principal amount thereof, (ii) such refinancings, refundings, renewals or extensions are issued on any terms and conditions reasonably satisfactory to the Administrative Agent (including a maturity date at least six (6) months after the Revolving Credit Maturity Date) and (iii) no Default or Event of determinationDefault exists and is continuing at the time of consummation thereof (both before and giving effect thereto);
(fg) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Parties;
(gh) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a) through (e) of this Section; provided that neither the Borrower nor any Guarantor shall be permitted to incur Guaranty Obligations under this subsection (g) with respect to Indebtedness of any Subsidiary that is not a Guarantor ;
(h) Indebtedness owed by (i) any Guarantor to the Borrower, (ii) the Borrower to any Guarantor, (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor to the Borrower or any Guarantor in an amount not to exceed $500,000, or (vi) the Borrower or any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,000;
(i) Indebtedness incurred owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) unsecured Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to each of the issuance of Qualified Senior Unsecured Notes, and, in each case, any refinancings, refundings, renewals, extensions or exchanges thereof (“Refinancing Indebtedness”); provided that in the case of each issuance of such Indebtedness, (i) such Refinancing Indebtedness is an original aggregate principal amount not greater than the aggregate principal amount of, and unpaid interest on, the Indebtedness being refinanced, refunded, renewed, extended or exchanged plus the amount of any premiums required to be paid thereon and fees and expense associated therewith, (ii) such Refinancing Indebtedness has a later or equal final maturity and a larger or equal weighted average life than the Indebtedness being refinanced, refunded, renewed, extended or exchanged, (iii) the covenants, events of default and any Guaranty Obligations in respect thereof, taken as a whole, shall not be materially less favorable to the Borrower and its Restricted Subsidiaries (as determined by the Administrative Agent in its reasonable discretion) than those contained in the Indebtedness being refinanced, refunded, renewed, extended or exchanged and (iv) at the time of, and after giving effect to, such refinancing, refunding, renewal, extension or exchange, no Default or Event of Default shall have occurred and be continuing continuing;
(l) additional unsecured Indebtedness of the Borrower or would be caused by its Restricted Subsidiaries; provided that (i) such Indebtedness matures at least six (6) months after the issuance later to occur of the Revolving Credit Maturity Date and the Incremental Term-1 Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness and Indebtedness, (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance incurrence of any such Indebtedness; and
Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (jiii) unsecured Subordinated Indebtedness; provided that in at the case time of each issuance the incurrence of such Subordinated IndebtednessIndebtedness and after giving effect thereto, (i) no Default or Event of Default shall have occurred and exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or would be caused by Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the issuance amount of such Subordinated secured Indebtedness that is recourse to any Credit Party shall not exceed $150,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Incremental Term-1 Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness and (iiiii) at the Administrative Agent shall have received satisfactory written evidence that time of the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis incurrence of such Indebtedness and after giving effect to the issuance thereto, no Default or Event of any such Subordinated Indebtedness; provided, that no agreement Default shall exist or instrument with respect to be continuing;
(n) Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower to make any payment to the Borrower or any Guarantor (of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the form ordinary course of dividends, intercompany advances or otherwise) for business; provided that the purpose underlying obligation to perform is that of enabling the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to pay be acquired hereunder; and
(p) Indebtedness of the ObligationsBorrower or any Restricted Subsidiary 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 that such Indebtedness is extinguished within five (5) Business Days of incurrence.
Appears in 1 contract
Samples: Incremental Term Loan Agreement (Corrections Corp of America)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness Debt except:
(ai) Debt incurred pursuant to the Obligations Loan Documents (excluding Specified Hedge Obligations Agreements permitted pursuant to Section 10.1(bthe following clause (ii))) and First Lien Loan Documents in an amount not to exceed the Cap Amount;
(bii) Indebtedness Debt incurred in connection with a Hedging Agreement which is entered into for interest rate, foreign currency, commodity or other business purposes and not for speculative purposes, Hedge Agreements (A) with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative AgentAgent or (B) required pursuant to Section 5.01(p); provided, provided that any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to the Administrative Agent;
(ciii) Indebtedness Debt existing on the Closing Date and not otherwise permitted under this Section, as set forth Section and listed on Schedule 6.1(t4.01(v), and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof; and listed on Schedule 4.01(v) and any refinancings, refundings, renewals or extensions thereof; provided that (A) the principal amount of such Debt is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (B) any refinancing, refunding, renewal or extension of any Subordinated Debt shall be (1) on subordination terms at least as favorable to the Lenders, (2) no more restrictive on the Borrower and its Subsidiaries than the Subordinated Debt being refinanced, refunded, renewed or extended and (3) in an amount not more than the amount outstanding at the time of such refinancing, refunding, renewal or extension;
(div) Indebtedness Debt of the Borrower and its Subsidiaries incurred in connection with Capital Capitalized Leases in an aggregate amount, together with the aggregate amount of all purchase money Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (e) below, not to exceed $20,000,000 12,000,000 on any date of determination;
(ev) purchase money Indebtedness Debt of the Borrower and its Subsidiaries with respect to the purchase of Equipment in an aggregate amount, together with the aggregate amount of all Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (d) above, not to exceed $20,000,000 12,000,000 on any date of determination;
(fvi) Guaranty Obligations Debt of a Person existing at the time such Person became a Subsidiary or assets were acquired from such Person, to the extent such Debt 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 $30,000,000;
(vii) Guaranties in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured PartiesLenders;
(gviii) Guaranty Obligations Guaranties with respect to Indebtedness Debt permitted pursuant to subsections clauses (ai) through (ev) of this Section; provided that neither the Borrower nor any Guarantor shall be permitted to incur Guaranty Obligations under this subsection (g) with respect to Indebtedness of any Subsidiary that is not a Guarantor subsection;
(hix) Indebtedness owed by additional Subordinated Debt so long as after giving effect to such Subordinated Debt the Leverage Ratio would be less than or equal to .25 below the applicable Leverage Ratio set forth in Section 5.04(a) calculated on a pro forma basis on the date of the last quarter reported and the Interest Coverage Ratio (ias defined in the First Lien Credit Agreement) any Guarantor to would be at least .25 greater than the Borrower, (iiapplicable Interest Coverage Ratio set forth in Section 5.04(b) of the Borrower to any Guarantor, (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary that is not First Lien Credit Agreement calculated on a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor to pro forma basis on the Borrower or any Guarantor in an amount not to exceed $500,000, or (vi) date of the Borrower or any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,000;
(i) Indebtedness incurred pursuant to the issuance of Qualified Senior Unsecured Noteslast quarter reported; provided that in the case of each issuance of such IndebtednessSubordinated Debt, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Indebtedness; and
(j) unsecured Subordinated Indebtedness; provided that in the case of each issuance of such Subordinated Indebtedness, (iA) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness Debt, and (iiB) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Subordinated IndebtednessDebt;
(x) Additional Debt not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed $12,000,000;
(xi) Debt incurred in the ordinary course of business in respect of obligations of the Borrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services that are paid by the Borrower or such Subsidiary in accordance with the applicable payment terms; provided, and
(xii) Debt of any Loan Party owed to any other Loan Party in an aggregate amount not to exceed $60,000,000; provided that no agreement or instrument with respect to Indebtedness Debt permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower to make any payment to the Borrower or any Guarantor of its Subsidiaries (in the form of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrower to pay the Obligations.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Landrys Restaurants Inc)
Limitations on Indebtedness. CreateThe Company will not, incurand will not permit any Subsidiary to, create, assume or suffer to exist incur or in any Indebtedness manner be or become liable in respect of any Indebtedness, except:
(a) the Obligations (excluding Specified Hedge Obligations permitted pursuant to Section 10.1(b))Ordinary Course Indebtedness;
(b) Indebtedness incurred in connection with a Hedging Agreement which is entered into for interest rate, foreign currency, commodity or other business purposes and not for speculative purposes, with a counterparty reasonably satisfactory to evidenced by the Administrative Agent; provided, that any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to the Administrative AgentSeries 1999-A Notes;
(c) Indebtedness existing on outstanding under the Closing Date and not otherwise permitted under this Section, as set forth on Schedule 6.1(t), and the renewal, refinancing, extension and replacement (but not the increase Bank Credit Agreement in the an aggregate principal amount) thereofamount not exceeding $75,000,000;
(d) Indebtedness of the Borrower and its Subsidiaries incurred in connection with Capital Leases in an aggregate amount, together with the aggregate amount of all purchase money Indebtedness of the Borrower and its Subsidiaries incurred outstanding pursuant to subsection (e) below, not to exceed $20,000,000 on any date of determinationPermitted Accounts Receivable Financing Facilities;
(e) purchase money Indebtedness of outstanding under the Borrower and its Subsidiaries with respect to the purchase of Equipment 1992 Note Agreements in an aggregate amount, together with the aggregate principal amount of all Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (d) above, not to exceed exceeding $20,000,000 on any date of determination13,336,000;
(f) Guaranty Obligations secured purchase money Indebtedness, including Capital Lease Obligations, originally incurred to acquire fixed assets providedthat at the time of such acquisition, the aggregate amount remaining unpaid on all such Indebtedness secured by Liens on such fixed assets, whether or not assumed by the Company or its Subsidiaries, does not exceed an amount equal to the lesser of (i) 100%, in favor the case of fixed assets which are personal property (including Capital Leases of fixed assets which are personal property), or (ii) 80%, in the case of fixed assets which are real property, of the Administrative Agent for the benefit lesser of the Administrative Agent and total purchase price or Fair Market Value at the other Secured Partiestime of such acquisition as determined in good faith by the Board of Directors of the Company;
(g) Guaranty Obligations with respect to other Indebtedness permitted pursuant to subsections (a) through (e) of this Sectionfor borrowed money; provided that neither the Borrower nor any Guarantor shall be permitted to incur Guaranty Obligations under this subsection (g) with respect to Indebtedness of any Subsidiary that is not a Guarantor ;
(h) Indebtedness owed by (i) any Guarantor to at the Borrowertime of incurrence thereof, (ii) the Borrower to any Guarantor, (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor to the Borrower or any Guarantor in an amount not to exceed $500,000, or (vi) the Borrower or any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,000;
(i) Indebtedness incurred pursuant to the issuance of Qualified Senior Unsecured Notes; provided that in the case of each issuance of such Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Indebtedness and exist, (ii) the Administrative Agent aggregate outstanding principal amount of such Indebtedness plus (without duplication) the aggregate investment or claim held by purchasers of receivables in Foreign Receivable Financing Facilities shall have received not exceed 15% of Consolidated Net Worth at any time, (iii) the aggregate outstanding principal amount of all such Indebtedness of the Company or any Domestic Subsidiary (other than Indebtedness under Excluded Subsidiary Guaranties) shall not exceed 3% of Consolidated Net Worth at any time, and (iv) the aggregate outstanding principal amount of all such Indebtedness of any Foreign Subsidiary plus (without duplication) the aggregate investment or claim held by purchasers of receivables in Foreign Receivable Financing Facilities shall not exceed 15% of Consolidated Net Worth at any time;
(h) Indebtedness under any Swap Contract with a term not greater than 184 days entered into in the ordinary course of business for bona fide hedging purposes and not for speculation;
(i) Indebtedness of the Company which is not required to be redeemed, repurchased or otherwise prepaid by the Company (except on account of a default thereunder) on or prior to March 1, 2010, and which Indebtedness is subordinated to other Indebtedness of the Company (including the Notes) on terms which are reasonably satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance holders of any the Notes (such Indebtedness, "Subordinated Indebtedness"); and
(j) unsecured Subordinated IndebtednessIndebtedness refinancing or extending Indebtedness permitted above on terms and conditions no less favorable than the Indebtedness being refinanced; provided provided, however, that in the case of each issuance principal amount of such Subordinated Indebtedness, (i) new Indebtedness shall not exceed the outstanding principal amount of Indebtedness being refinanced immediately prior to such refinancing and that at the time of incurrence of such Indebtedness and after giving effect thereto no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in exits under this Agreement on a pro forma basis after giving effect to the issuance of any such Subordinated Indebtedness; provided, that no agreement or instrument with respect to Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower to make any payment to the Borrower or any Guarantor (in the form of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrower to pay the ObligationsAgreement.
Appears in 1 contract
Samples: Note Purchase Agreement (K2 Inc)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations (excluding Specified Hedge including Hedging Obligations to the extent permitted pursuant to Section 10.1(b10.3(d));
(b) Indebtedness incurred in connection with a Hedging Agreement which is entered into for interest rate, foreign currency, commodity or other business purposes and not for speculative purposes, with a counterparty reasonably satisfactory to the Administrative Agent; provided, that any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Closing Date and not otherwise permitted under this SectionSection 10.1, as set forth on Schedule 6.1(t), and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(dc) Indebtedness of the Borrower Credit Parties and its their Subsidiaries incurred in connection with Capital Leases, including those Capital Leases existing on the Closing Date and including Capital Leases incurred in connection with a Permitted Acquisition (so long as such Capital Lease was not incurred in contemplation of such acquisition), in an aggregate amountamount not to exceed $5,000,000 on any date of determination;
(d) purchase money Indebtedness, together with the aggregate amount of including all purchase money Indebtedness existing on the Closing Date and including purchase money Indebtedness incurred in connection with a Permitted Acquisition (so long as such purchase money Indebtedness was not incurred in contemplation of such acquisition), of the Borrower Credit Parties and its their Subsidiaries incurred pursuant to subsection (e) below, in an aggregate amount not to exceed $20,000,000 2,500,000 on any date of determination;
(e) purchase money Indebtedness of the Borrower and its Subsidiaries with respect to the purchase of Equipment in an aggregate amount, together with the aggregate amount of all Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (d) above, not to exceed $20,000,000 on any date of determination;
(f) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured PartiesLenders;
(gf) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a) through (ed) and (k) through (n) of this Section; provided that neither the Borrower nor any Guarantor shall be permitted to incur Guaranty Obligations under this subsection ;
(g) with respect to Indebtedness of owed by any Subsidiary that is not Guarantor to a Borrower, by a Borrower to any Subsidiary Guarantor and by any Subsidiary Guarantor to any other Subsidiary Guarantor;
(h) Indebtedness owed by any Foreign Subsidiary (i) to any Guarantor to the Borrower, other Foreign Subsidiary and (ii) the Borrower to any Guarantor, (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor to the Borrower Credit Party or any Guarantor Domestic Subsidiary thereof; provided, that the aggregate amount of all intercompany Indebtedness incurred by Foreign Subsidiaries pursuant to Section 10.1(h)(ii), plus the aggregate amount of all investments in Foreign Subsidiaries made pursuant to Section 10.3(a)(iii) shall not at any time exceed an aggregate amount not to exceed of $500,000, or (vi) the Borrower or any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,0005,000,000;
(i) Subordinated Indebtedness incurred pursuant on terms and conditions reasonably satisfactory to the issuance of Qualified Senior Unsecured NotesAdministrative Agent; provided that in the case of each issuance incurrence of such Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Indebtedness; and
(j) unsecured Subordinated Indebtedness; provided that in the case of each issuance of such Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower Borrowers would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Subordinated Indebtedness; provided;
(j) endorsements of negotiable instruments for deposit or collection in the ordinary course of business;
(k) unsecured Indebtedness in respect of performance bonds, that no agreement worker’s compensation claims, surety or instrument appeal bonds and payment obligations in connection with respect to Indebtedness permitted to be incurred by this Section shall restrictself insurance or similar obligations, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower to make any payment in each case to the Borrower or any Guarantor extent incurred in the ordinary course of business; and
(l) Indebtedness in the form of dividendsearn-outs and other contingent payments in respect of Permitted Acquisitions (both before and after any liability associated therewith becomes fixed);
(m) Indebtedness (i) incurred in respect of customary netting services, intercompany advances or otherwiseoverdraft protections and otherwise in connection with deposit accounts, in each case, incurred in the ordinary course of business and (ii) for incurred in connection with Hedging Agreements permitted pursuant to Section 10.3(d) to the purpose extent not already permitted under any other clause of enabling this Section 10.1; and
(n) unsecured Indebtedness in the Borrower aggregate principal amount not to pay the Obligationsexceed $5,000,000 at any one time outstanding.
Appears in 1 contract
Samples: Credit Agreement (PRA International)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness Debt except:
(ai) Debt incurred pursuant to the Obligations Loan Documents (excluding Specified Hedge Obligations Agreements permitted pursuant to Section 10.1(b))the following clause) (ii) and Second Lien Loan Documents;
(bii) Indebtedness Debt incurred in connection with a Hedging Agreement which is entered into for interest rate, foreign currency, commodity or other business purposes and not for speculative purposes, Hedge Agreements (A) with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative AgentAgent or (B) required pursuant to Section 5.01(p); provided, provided that any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to the Administrative Agent;
(ciii) Indebtedness Debt existing on the Closing Date and not otherwise permitted under this Section, as set forth Section and listed on Schedule 6.1(t4.01(v), and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof; and listed on Schedule 4.01(v) and any refinancings, refundings, renewals or extensions thereof; provided that (A) the principal amount of such Debt is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (B) any refinancing, refunding, renewal or extension of any Subordinated Debt shall be (1) on subordination terms at least as favorable to the Lenders, (2) no more restrictive on the Borrower and its Subsidiaries than the Subordinated Debt being refinanced, refunded, renewed or extended and (3) in an amount not more than the amount outstanding at the time of such refinancing, refunding, renewal or extension;
(div) Indebtedness Debt of the Borrower and its Subsidiaries incurred in connection with Capital Capitalized Leases in an aggregate amount, together with the aggregate amount of all purchase money Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (e) below, not to exceed $20,000,000 10,000,000 on any date of determination;
(ev) purchase money Indebtedness Debt of the Borrower and its Subsidiaries with respect to the purchase of Equipment in an aggregate amount, together with the aggregate amount of all Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (d) above, not to exceed $20,000,000 10,000,000 on any date of determination;
(fvi) Guaranty Obligations Debt of a Person existing at the time such Person became a Subsidiary or assets were acquired from such Person, to the extent such Debt 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 $25,000,000;
(vii) Guaranties in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured PartiesLenders;
(gviii) Guaranty Obligations Guaranties with respect to Indebtedness Debt permitted pursuant to subsections clauses (ai) through (ev) of this Section; provided that neither the Borrower nor any Guarantor shall be permitted to incur Guaranty Obligations under this subsection (g) with respect to Indebtedness of any Subsidiary that is not a Guarantor subsection;
(hix) Indebtedness owed by (iadditional Subordinated Debt so long as after giving effect to such Subordinated Debt the Leverage Ratio would be less than or equal to .25 below the applicable Leverage Ratio set forth in Section 5.04(a) any Guarantor to calculated on a pro forma basis on the Borrower, (iidate of the last quarter reported and the Interest Coverage Ratio would be at least .25 greater than the applicable Interest Coverage Ratio set forth in Section 5.04(b) calculated on a pro forma basis on the Borrower to any Guarantor, (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor to date of the Borrower or any Guarantor in an amount not to exceed $500,000, or (vi) the Borrower or any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,000;
(i) Indebtedness incurred pursuant to the issuance of Qualified Senior Unsecured Noteslast quarter reported; provided that in the case of each issuance of such IndebtednessSubordinated Debt, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Indebtedness; and
(j) unsecured Subordinated Indebtedness; provided that in the case of each issuance of such Subordinated Indebtedness, (iA) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness Debt, and (iiB) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Subordinated IndebtednessDebt;
(x) Additional Debt not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed $10,000,000;
(xi) Debt incurred in the ordinary course of business in respect of obligations of the Borrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services that are paid by the Borrower or such Subsidiary in accordance with the applicable payment terms; and
(xii) Debt of any Loan Party owed to any other Loan Party in an aggregate amount not to exceed $50,000,000; provided, that no agreement or instrument with respect to Indebtedness Debt permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower to make any payment to the Borrower or any Guarantor of its Subsidiaries (in the form of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrower to pay the Obligations.
Appears in 1 contract
Samples: First Lien Credit Agreement (Landrys Restaurants Inc)
Limitations on Indebtedness. Create(a) The Company will not, --------------------------- and will not permit any Restricted Subsidiary to, create, incur, assume or suffer permit to exist any Indebtedness Indebtedness, except:
(ai) Indebtedness created under the Obligations (excluding Specified Hedge Obligations permitted pursuant to Section 10.1(b))Loan Documents;
(b) Indebtedness incurred in connection with a Hedging Agreement which is entered into for interest rate, foreign currency, commodity or other business purposes and not for speculative purposes, with a counterparty reasonably satisfactory to the Administrative Agent; provided, that any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to the Administrative Agent;
(cii) Indebtedness existing on the Closing Date date hereof and not otherwise permitted under this Section, as set forth on Schedule 6.1(t)6.01 attached hereto, and extensions, renewals or replacements of any such Indebtedness that do not increase the renewal, refinancing, extension and replacement (but not the increase in the aggregate outstanding principal amount) amount thereof;
(diii) Indebtedness of the Borrower Company to any Subsidiary and its Subsidiaries incurred in connection with Capital Leases in an aggregate amount, together with of any Subsidiary to the aggregate amount of all purchase money Company or any other Subsidiary; provided that Indebtedness of -------- any Subsidiary that is not a Loan Party to the Borrower and its Subsidiaries incurred pursuant Company or any Subsidiary Loan Party shall be subject to subsection (e) below, not to exceed $20,000,000 on any date of determinationSection 6.04;
(eiv) purchase money Guarantees by the Company of Indebtedness or operating lease payment obligations of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower and its Subsidiaries with respect to the purchase of Equipment in an aggregate amount, together with the aggregate amount of all Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (d) above, not to exceed $20,000,000 on any date of determination;
(f) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Parties;
(g) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a) through (e) of this SectionSubsidiary; provided that neither Guarantees by the Borrower nor Company or any Guarantor shall be permitted to incur Guaranty Obligations under this subsection (g) with respect to -------- Subsidiary Loan Party of Indebtedness or operating lease payment obligations of any Subsidiary that is not a Guarantor Loan Party shall be subject to Section 6.04;
(hv) Purchase Money Indebtedness owed of the Company or any Restricted Subsidiary (other than Subsidiaries in the RCN-BecoCom Group or Starpower Group); provided that the sum of the aggregate principal -------- amount of Indebtedness permitted by (i) any Guarantor to the Borrower, (ii) the Borrower to any Guarantor, (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, this clause (v) any Subsidiary that is and the aggregate amount of Attributable Debt in respect of sale and leaseback transactions of the Company and its Restricted Subsidiaries (other than the RCN-BecoCom Group and the Starpower Group) permitted by Section 6.06 shall not a Guarantor to the Borrower or any Guarantor in an amount not to exceed $500,000, or 180,000,000 at any time outstanding;
(vi) Indebtedness of any Person that becomes a Restricted Subsidiary after the Borrower or any Guarantor to any date hereof; provided that such Indebtedness exists at the time -------- such Person becomes a Restricted Subsidiary that and is not created in contemplation of or in connection with such Person becoming a Guarantor in an Restricted Subsidiary; and extensions, renewals or replacements of any such Indebtedness that do not increase the principal amount not to exceed $500,000thereof;
(ivii) Indebtedness incurred pursuant to Permitted Debt of the issuance of Qualified Senior Unsecured NotesCompany; provided that in the case of each issuance of such Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Indebtedness is -------- permitted by Section 6.12(c) and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Indebtedness; and
(j) when incurred;
(viii) other secured or unsecured Subordinated Indebtedness; provided that in the case of each issuance of such Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Subordinated Indebtedness; provided, that no agreement or instrument with respect to Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower to make any payment to the Borrower Company or any Guarantor (Restricted Subsidiary not in the form excess of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrower to pay the Obligations.$25,000,000 at any time outstanding;
Appears in 1 contract
Samples: Credit Agreement (RCN Corp /De/)
Limitations on Indebtedness. CreateThe Loan Parties shall not, and shall not permit any of their Subsidiaries to, create, assume, incur, assume issue, guarantee or suffer otherwise become or remain obligated in respect of, or permit to exist be outstanding, any Indebtedness except:Indebtedness, except the following (the “Permitted Indebtedness”):
(a) the Obligations (excluding Specified Hedge Obligations permitted pursuant to Section 10.1(b))Obligations;
(b) Subordinated Indebtedness incurred in connection an aggregate amount outstanding (together with a Hedging Agreement which is entered into for interest rate, foreign currency, commodity or other business purposes and any Refinancing Debt in respect thereof) at any time not for speculative purposes, with a counterparty reasonably satisfactory to the Administrative Agentin excess of $20,000,000; provided, that, in the event that any counterparty that such Subordinated Indebtedness is a Lender or an Permitted Affiliate thereof shall be deemed satisfactory Sub Debt, subject to the Administrative AgentIntercreditor Agreement, 100% of the proceeds thereof are immediately applied by Holdings to make a Specified Equity Contribution in the Borrower Agent in accordance with Section 6.1(c);
(c) Permitted Purchase Money Debt;
(d) Indebtedness existing (other than the Obligations, Subordinated Indebtedness, Permitted Purchase Money Debt and Revolving Loan Obligations) set forth on Schedule 6.2 (other than the Obligations, Subordinated Indebtedness, Permitted Purchase Money Debt and Revolving Loan Obligations), but only to the extent outstanding on the Closing Date and not otherwise permitted under this Section, as set forth on Schedule 6.1(t), and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(d) Indebtedness satisfied with proceeds of the Borrower and its Subsidiaries incurred in connection with Capital Leases in an aggregate amount, together with the aggregate amount of all purchase money Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (e) below, not to exceed $20,000,000 on any date of determinationTerm Loans;
(e) purchase money Indebtedness that is in existence when a Person becomes a Subsidiary or that is secured by an asset when acquired by a Loan Party or Subsidiary, as long as (i) such Indebtedness was not incurred in contemplation of the Borrower such Person becoming a Subsidiary or such acquisition, and its Subsidiaries with respect to the purchase of Equipment in an aggregate amount, together with (i) the aggregate amount of all Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection outstanding under this clause (de) above, (together with any Refinancing Debt in respect thereof) does not to exceed $20,000,000 on 1,000,000 in the aggregate at any date of determinationtime;
(f) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured PartiesPermitted Contingent Obligations;
(g) Guaranty Revolving Loan Obligations with respect so long as such obligations do not exceed the Revolving Loan Maximum Amount, subject to Indebtedness permitted pursuant to subsections the limitations set forth in the Intercreditor Agreement; provided, that, the maximum aggregate amount of Revolving Loan Obligations specified in clause (a) through (ea)(i) of this Section; provided the definition of “Revolving Loan Maximum Amount” set forth in the Intercreditor Agreement of any Person other than the Loan Parties that neither the Borrower nor any Guarantor shall be permitted to incur Guaranty Obligations under this subsection clause (g) with respect to Indebtedness of any Subsidiary that is shall not a Guarantor ;
(h) Indebtedness owed by (i) any Guarantor to the Borrower, (ii) the Borrower to any Guarantor, (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor to the Borrower or any Guarantor in an amount not to exceed $500,000, or (vi) the Borrower or any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,00010,000,000;
(i) Indebtedness incurred pursuant to the issuance of Qualified Senior Unsecured Notes; provided that in the case of each issuance of such Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Indebtedness; and
(j) unsecured Subordinated Indebtedness; provided that in the case of each issuance of such Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Subordinated Indebtedness; provided, that no agreement or instrument with respect to Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower to make any payment to the Borrower or any Guarantor (in the form of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrower to pay the Obligations.
Appears in 1 contract
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations (excluding Specified Hedge Obligations permitted pursuant to Section 10.1(b)Hedging Obligations);
(b) Indebtedness incurred the Senior Secured Notes in connection with a Hedging Agreement which is entered into for interest rate, foreign currency, commodity or other business purposes and an aggregate principal amount not for speculative purposes, with a counterparty reasonably satisfactory to the Administrative Agent; provided, that any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to the Administrative Agentexceed $305,175,000;
(c) Indebtedness in respect of letters of credit (that do not constitute Letters of Credit hereunder) issued by a financial institution or institutions having an aggregate stated amount not exceeding the difference between $6,400,000 and the aggregate L/C Obligations outstanding from time to time hereunder (“Permitted LCs”), that are collateralized with cash or cash equivalents in an amount at least equal to (but not exceeding 105% of) the aggregate stated amount of such letters of credit;
(d) Intentionally Omitted
(e) Intentionally Omitted;
(f) Indebtedness existing on the Closing Date and not otherwise permitted under this Section, as set forth Section and listed on Schedule 6.1(t)10.1, and any refinancings, refundings, renewals or extensions thereof; provided that (i) the renewal, principal amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and replacement fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (but ii) any refinancing, refunding, renewal or extension of any Subordinated Indebtedness shall be (A) on subordination terms at least as favorable to the Lenders, (B) no more restrictive on the Credit Parties than the Subordinated Indebtedness being refinanced, refunded, renewed or extended and (C) in an amount not less than the increase in amount outstanding at the aggregate principal amount) thereoftime of such refinancing, refunding, renewal or extension;
(d) Indebtedness of the Borrower and its Subsidiaries incurred in connection with Capital Leases in an aggregate amount, together with the aggregate amount of all purchase money Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (e) below, not to exceed $20,000,000 on any date of determination;
(e) purchase money Indebtedness of the Borrower and its Subsidiaries with respect to the purchase of Equipment in an aggregate amount, together with the aggregate amount of all Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (d) above, not to exceed $20,000,000 on any date of determination;
(fg) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured PartiesLenders;
(gh) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections clauses (a) through (ec) of this Section.
(i) Intercompany Indebtedness owed by Holdings or any Subsidiary to Holdings or any Subsidiary; provided that neither the Borrower nor any Guarantor shall be permitted to incur Guaranty Obligations under this subsection (g) with respect to Indebtedness of any Subsidiary that is not a Guarantor ;
(h) Indebtedness owed by (i) any Guarantor to the Borrower, no Event of Default has occurred and is continuing or would result therefrom and (ii) all such extensions of credit shall be documented in the Borrower to any Guarantorform of subordinated promissory notes and such notes shall be delivered, (iii) any Guarantor to any with such appropriate endorsement or other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor collateral assignment documents to the Borrower or any Guarantor Collateral Agent as Collateral in accordance with the Security Documents.
(j) additional Indebtedness of Holdings and its Subsidiaries in an aggregate principal amount not to exceed $500,000, or 3,778,000 at any time outstanding (vi) the Borrower or including Indebtedness in respect of Capital Leases and Purchase Money Indebtedness outstanding at any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,000;
(i) Indebtedness incurred pursuant to the issuance of Qualified Senior Unsecured Notestime); provided that in the case of each issuance of such Indebtedness, (i) no Default or Event of Default shall have has occurred and be continuing is continuing, or would be caused by the issuance of such Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Indebtedness; and
(j) unsecured Subordinated Indebtednessresult therefrom; provided that in the case of each issuance of such Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Subordinated Indebtedness; provided, that no agreement or instrument with respect to Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower Credit Party to make any payment to the Borrower Holdings or any Guarantor of its Subsidiaries (in the form of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrower Borrowers to pay the Obligations.
Appears in 1 contract
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations (excluding Specified Indebtedness and obligations owing under Hedge Obligations Agreements permitted pursuant to Section 10.1(b11.1(b));
(b) Indebtedness incurred in connection with a Hedging Agreement which is and obligations owing under Hedge Agreements entered into for in order to manage existing or anticipated interest rate, foreign currency, exchange rate or commodity or other business purposes price risks and not for speculative purposes, with a counterparty reasonably satisfactory to the Administrative Agent; provided, that any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Closing Date and not otherwise permitted under this Section, as set forth listed on Schedule 6.1(t)11.1, and any refinancings, refundings, renewals or extensions thereof; provided that (i) the renewal, principal amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder, (ii) the final maturity date and weighted average life of such refinancing, refunding, renewal or extension shall not be prior to or shorter than that applicable to the Indebtedness prior to such refinancing, refunding, renewal or extension and replacement (but iii) any refinancing, refunding, renewal or extension of any Subordinated Indebtedness shall be (A) on subordination terms at least as favorable to the Lenders, (B) no more restrictive on the Borrower and its Subsidiaries than the Subordinated Indebtedness being refinanced, refunded, renewed or extended and (C) in an amount not less than the increase in amount outstanding at the aggregate principal amount) thereoftime of such refinancing, refunding, renewal or extension;
(d) Indebtedness of the Borrower and its Subsidiaries incurred in connection with Capital Leases and purchase money Indebtedness in an aggregate amount, together with the aggregate amount of all purchase money Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (e) below, not to exceed $20,000,000 on 50,000,000 at any date of determinationtime outstanding;
(e) purchase money Indebtedness of a Person existing at the time such Person became a Subsidiary or assets were acquired from such Person in connection with an Investment permitted pursuant to Section 11.3, to the extent that (i) such Indebtedness was not incurred in connection with, or in contemplation of, such Person becoming a Subsidiary or the acquisition of such assets, (ii) neither the Borrower and its Subsidiaries nor any Subsidiary thereof (other than such Person or any other Person that such Person merges with or that acquires the assets of such Person) shall have any liability or other obligation with respect to the purchase of Equipment in an aggregate amount, together with such Indebtedness and (iii) the aggregate outstanding principal amount of all such Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (d) above, does not to exceed $20,000,000 on 30,000,000 at any date of determinationtime outstanding;
(f) Guaranty Obligations Indebtedness of Foreign Subsidiaries in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Partiesan aggregate principal amount not to exceed $150,000,000 at any time outstanding;
(g) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a) through (ef) of this Section; provided that neither the Borrower nor any Guarantor shall be permitted to incur Guaranty Obligations under this subsection (g) with respect to Indebtedness of any Subsidiary that is not a Guarantor ;
(h) unsecured intercompany Indebtedness owed by (i) owed by any Guarantor Credit Party to the Borroweranother Credit Party, (ii) the Borrower owed by any Foreign Subsidiary to any Guarantoranother Foreign Subsidiary, (iii) owed by any Guarantor Foreign Subsidiary to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor to the Borrower or any Guarantor Credit Party in an aggregate principal amount not to exceed $500,000, or 75,000,000 at any time outstanding (vi) the Borrower or provided that any Guarantor Indebtedness owed by such Foreign Subsidiary to any Credit Party pursuant to this clause (iii) shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent), (iv) owed by any Credit Party to any Foreign Subsidiary (provided, that is not such Indebtedness shall be subordinated to the Obligations in a Guarantor in an amount not manner reasonably satisfactory to exceed $500,000the Administrative Agent);
(i) Indebtedness incurred pursuant to arising from the issuance honoring by a bank or other financial institution of Qualified Senior Unsecured Notes; provided that a check, draft or other similar instrument drawn against insufficient funds in the case ordinary course of each issuance of such Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Indebtedness; and
(j) unsecured Subordinated Indebtedness; provided that in the case of each issuance of such Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Subordinated Indebtedness; provided, that no agreement or instrument with respect to Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower to make any payment to the Borrower or any Guarantor (in the form of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrower to pay the Obligations.business;
Appears in 1 contract
Samples: Credit Agreement (Fossil Inc)
Limitations on Indebtedness. Create(a) The Company will not, incurand will not permit any Consolidated Subsidiary to, assume create, assume, incur or suffer to exist guarantee or in any manner be or become liable in respect of any Current Indebtedness or Funded Indebtedness, except:
(a1) the Obligations (excluding Specified Hedge Obligations permitted pursuant to Section 10.1(b))Note;
(b2) the Bank Debt, provided that during the twelve-month period immediately preceding the date of any determination hereunder (commencing on the date occurring twelve months after the Closing Date), there shall have been a period of 45 consecutive days during which the Company and each of its Consolidated Subsidiary shall have been free of all Indebtedness incurred in connection with a Hedging outstanding under the working capital facility of the Credit Agreement which is entered into for interest rate, foreign currency, commodity or and all other business purposes and not for speculative purposes, with a counterparty reasonably satisfactory to the Administrative Agent; provided, that any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to the Administrative AgentCurrent Indebtedness;
(c3) Funded Indebtedness existing on of the Closing Date Company and its Consolidated Subsidiaries outstanding as of the date of this Indenture and described in Annex B to Exhibit E attached to the Note Agreements;
(4) Funded Indebtedness issued or incurred for the purpose of extending, renewing or refunding Funded Indebtedness (including the Bank Debt) outstanding as of the date of this Indenture, prodded that the principal amount of Funded Indebtedness extended, renewed or refinanced does not otherwise permitted under this Sectionexceed the outstanding principal amount of such Funded Indebtedness at such time;
(5) Guaranties entered late by the Company in the ordinary course of business, as set forth on Schedule 6.1(t), and the renewal, refinancing, extension and replacement (but not the increase in provided that the aggregate principal amount) thereofamount of Indebtedness which the Company may become obligated to pay thereunder shall not exceed $250,000 at any one time outstanding;
(d6) other Funded Indebtedness issued or incurred after July 1, 1990 provided that, at the time of the Borrower issuance or incurrence thereof and its Subsidiaries incurred in connection with Capital Leases in an aggregate amount, together with after giving effect thereto and to the aggregate amount of all purchase money Indebtedness application of the Borrower and its Subsidiaries incurred pursuant to subsection (e) below, not to exceed $20,000,000 on any date of determination;proceeds thereof:
(e) purchase money Indebtedness of the Borrower and its Subsidiaries with respect to the purchase of Equipment in an aggregate amount, together with the aggregate amount of all Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (d) above, not to exceed $20,000,000 on any date of determination;
(f) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Parties;
(g) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a) through (e) of this Section; provided that neither the Borrower nor any Guarantor shall be permitted to incur Guaranty Obligations under this subsection (g) with respect to Indebtedness of any Subsidiary that is not a Guarantor ;
(h) Indebtedness owed by (i) any Guarantor to Consolidated Funded Indebtedness shall not exceed the Borrowerfollowing percentages of Total Capitalization: Percentage of Total Period Capitalization July 1, 1990 thru June 30, 1991 78% July 1, 1991 thru June 30, 1992 74% July 1, 1992 thru June 30, 1993 69% July 1, 1993 and thereafter 65%
(ii) the Borrower ratio of Consolidated Funded Indebtedness to any GuarantorConsolidated Cash Flow for the most recent four fiscal quarters shall not exceed (A) 4.5 to 1, (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor to the Borrower or any Guarantor in an amount not to exceed $500,000, or (vi) the Borrower or any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,000;
(i) Indebtedness incurred pursuant to the issuance of Qualified Senior Unsecured Notes; provided that in the case of any determination being made hereunder on or prior to June 30, 1991, and (B) 4.0 to 1, in the case of any determination being made hereunder at any time thereafter;
(iii) the sum of Consolidated Cash Floor plus Rentals for the most recent four focal quarters shall be not less then 1.5 times proforma Consolidated Debt Service for the immediately succeeding four fiscal quarters; and
(iv) No Default or Event of Default shall have occurred and be continuing;
(7) unsecured Current Indebtedness of the Company and its Consolidated Subsidiaries, prodded that during the twelve-month period immediately preceding the date of any determination hereunder (commencing on the date occurring twelve months after the Closing Date), there shall have been a period of 45 consecutive days during which the Company and each issuance of such its Consolidated Subsidiaries shall have been free of all Indebtedness outstanding under the working capital facility of the Credit Agreement and all other Current Indebtedness, ;
(8) Current Indebtedness or Funded Indebtedness (i) of a Principal Subsidiary to the Company or to another principal Subsidiary and (ii) of the Company to a Principal Subsidiary;
(9) Current Indebtedness or Funded Indebtedness (i) of a Consolidated Subsidiary other than a Principal Subsidiary to the Company or to another Consolidated Subsidiary other than a Principal Subsidiary and (ii) of the Company to a Consolidated Subsidiary other than a Principal Subsidiary;
(10) Funded indebtedness representing purchase money obligations and secured by purchase money liens permitted by section 3.19(i), provided that (i) such Funded Indebtedness is incurred in compliance with the limitations on Indebtedness set forth in this section 3.18 and (ii) at the time of issuance thereof and after giving effect thereto and to the application of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing continuing;
(11) unsecured Indebtedness of the Company or would be caused any of its Consolidated Subsidiaries incurred in the ordinary course of business resulting from physician or mental health practice guaranties pursuant to which the Company or any such Consolidated Subsidiary guarantees to pay a physician or mental health professional on the medical staff of a Hospital owned of operated by it a minimum annual income or guaranties by the issuance Company for such Consolidated Subsidiary of obligations or any such physician or mental health professional (Practice Gustier), in an aggregate amount at any one time outstanding in respect of Practice Guaranties for the benefit of any one physician or mental health professional not to exceed $250,000 and in an aggregate amount at any one time outstanding in respect of all such Practice Guaranties not to exceed $5,000,000.
(12) Funded Indebtedness issued or incurred by the Company or any Consolidated Subsidiary in connection with the acquisition of telephone systems to be used at facilities owned by the Company or such Consolidated Subsidiary, provided that the aggregate principal amount of all such Funded Indebtedness at any one time outstanding shall not exceed $600,000;
(13) additional unsecured Subordinated Funded Indebtedness in an aggregate principal amount not to exceed $2,000,000; provided that (i) all proceeds of such Subordinated Funded Indebtedness shall be used exclusively to retire the Subordinated Promissory Note, (ii) the terms of such Subordinated Funded Indebtedness (including interest rate, covenants, defaults, subordination provisions and related warrants if any) shall be no more favorable to the holders thereof than the terms of the Subordinated Secured Note and all such Subordinated Funded Indebtedness shall mature on or after April 1, 2000;
(14) Guaranties of any Consolidated Subsidiary entered into pursuant to the Credit Agreement; provided that with respect to any such Guaranty entered into by any Principal Subsidiary (i) the obligations guaranteed by such Guaranty shall be limited to the amount of accounts receivable of the Principal Subsidiaries allocated to the lenders under the Credit Agreement under the receivable Print formula provided under the Intercreditor Agreement and (ii) the Administrative Agent recourse under such Guaranty shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect limited solely to the issuance accounts receivable of any such IndebtednessPrincipal Subsidiary, all subject to the accounts receivable sharing provided under the Intercreditor Agreement; and
(j15) unsecured Subordinated Indebtedness; additional Current Indebtedness incurred under the working capital facility of the Credit Agreement in an aggregate principal amount not to exceed $3,000,000, provided that that, at the time of the issuance or incurrence thereof and after giving effect thereto and to the application of the proceeds thereof:
(i) Consolidated Funded Indebtedness shall not exceed the following percentages of Total Capitalization: Percentage of Total Period Capitalization July 1, 1990 thru June 30, 1991 78% July 1, 1991 thru June 30, 1992 74% July 1, 1992 thru June 30, 1993 69% July 1, 1993 and thereafter 65%
(ii) the ratio of Consolidated Funded Indebtedness to Consolidated Cash Flow for the most recent four fiscal quarters shall not exceed (A) 4.5 to 1, in the case of each issuance any determination being made hereunder on or prior to June 30, 1991, and (B) 4.0 to 1, in the case of such Subordinated Indebtedness, any determination being made hereunder at any time thereafter;
(iiii) no the sum of Consolidated Cash Flow plus Rentals for the most recent four fiscal quarters shall be not less then 1.5 times pro-forma Consolidated Debt Service for the immediately succeeding four fiscal quarters; and
(iv) No Default or Event of Default shall have occurred and be continuing continuing; and provided further that during the twelve-month period immediately preceding the date of any determination hereunder (commencing on the date occurring twelve months after the Closing Date there shall have been a period of 45 consecutive days during which the Company and each of its Consolidated Subsidiaries shall have been free of all Indebtedness outstanding under the working capital facility of the Credit Agreement and all other Current Indebtedness.
(b) Any corporation which becomes a Consolidated Subsidiary after the date hereof shall for all purposes of this section 3.18 be deemed to have created, assumed or would be caused by incurred at the issuance time it becomes a Consolidated Subsidiary all Current Indebtedness and Funded Indebtedness of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on corporation existing immediately after it becomes a pro forma basis after giving effect to the issuance of any such Subordinated Indebtedness; provided, that no agreement or instrument with respect to Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower to make any payment to the Borrower or any Guarantor (in the form of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrower to pay the ObligationsConsolidated Subsidiary.
Appears in 1 contract
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations (excluding Specified Hedge Obligations permitted pursuant to Section 10.1(b))Obligations;
(b) Indebtedness incurred in connection with a Hedging Agreement which is entered into for interest rate, foreign currency, commodity or other business purposes and not for speculative purposes, with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided, that any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Prior Closing Date and not otherwise permitted under this Section, as set forth listed on Schedule 6.1(t6.1(l), and the renewal, refinancing, refunding, extension and replacement (but not the increase in the aggregate principal amount) thereof; provided that any refinancing, refunding, extension or replacement of any Senior Unsecured Notes shall also be subject to the satisfaction of the requirements set forth in Section 10.1(k);
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Capital Leases;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and the renewal, refinancing, refunding, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(df) Indebtedness of a Person existing at the Borrower and its Subsidiaries time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with Capital Leases or in an aggregate amountcontemplation of, together with such Person becoming a Restricted Subsidiary or the aggregate amount acquisition of all purchase money Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (e) belowsuch assets, not to exceed in the aggregate at any time outstanding $20,000,000 100,000,000, and any refinancings, refundings, renewals or extensions thereof; provided that, any (i) such refinancings, refundings, renewals or extensions do not increase the principal amount thereof, (ii) such refinancings, refundings, renewals or extensions are issued on any date terms and conditions reasonably satisfactory to the Administrative Agent and (iii) no Default or Event of determinationDefault exists and is continuing at the time of consummation thereof (both before and giving effect thereto);
(e) purchase money Indebtedness of the Borrower and its Subsidiaries with respect to the purchase of Equipment in an aggregate amount, together with the aggregate amount of all Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (d) above, not to exceed $20,000,000 on any date of determination;
(fg) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Parties;
(gh) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a) through (e) of this Section; provided that neither the Borrower nor any Guarantor shall be permitted to incur Guaranty Obligations under this subsection (g) with respect to Indebtedness of any Subsidiary that is not a Guarantor ;
(h) Indebtedness owed by (i) any Guarantor to the Borrower, (ii) the Borrower to any Guarantor, (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor to the Borrower or any Guarantor in an amount not to exceed $500,000, or (vi) the Borrower or any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,000;
(i) Indebtedness incurred owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) unsecured Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to each of the issuance of Qualified Senior Unsecured Notes, and, in each case, any refinancings, refundings, renewals, extensions or exchanges thereof (“Refinancing Indebtedness”); provided that in the case of each issuance of such Indebtedness, (i) such Refinancing Indebtedness is an original aggregate principal amount not greater than the aggregate principal amount of, and unpaid interest on, the Indebtedness being refinanced, refunded, renewed, extended or exchanged plus the amount of any premiums required to be paid thereon and fees and expense associated therewith, (ii) such Refinancing Indebtedness has a later or equal final maturity and a larger or equal weighted average life than the Indebtedness being refinanced, refunded, renewed, extended or exchanged, (iii) the covenants, events of default and any Guaranty Obligations in respect thereof, taken as a whole, shall not be materially less favorable to the Borrower and its Restricted Subsidiaries (as determined by the Administrative Agent in its reasonable discretion) than those contained in the Indebtedness being refinanced, refunded, renewed, extended or exchanged and (iv) at the time of, and after giving effect to, such refinancing, refunding, renewal, extension or exchange, no Default or Event of Default shall have occurred and be continuing continuing;
(l) additional unsecured Indebtedness of the Borrower or would be caused by its Restricted Subsidiaries; provided that (i) such Indebtedness matures at least six (6) months after the issuance Maturity Date as in effect at the time of the incurrence of such Indebtedness and Indebtedness, (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance incurrence of any such Indebtedness; and
Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (jiii) unsecured Subordinated Indebtedness; provided that in at the case time of each issuance the incurrence of such Subordinated IndebtednessIndebtedness and after giving effect thereto, (i) no Default or Event of Default shall have occurred and exist or be continuing or would be caused by the issuance of such Subordinated Indebtedness and (iiiv) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in compliance with all covenants contained in this Agreement on a pro forma basis an aggregate amount outstanding not to exceed (after giving effect to the issuance outstanding principal balance of any such Subordinated Indebtedness; providedthe Term Loan) an amount equal to ten percent (10%) of Consolidated Tangible Assets, that no agreement or instrument determined, with respect to each incurrence of Indebtedness permitted pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the Maturity Date as in effect at the time of the incurrence of such Indebtedness and (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing;
(n) Indebtedness incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower to make any payment to the Borrower or any Guarantor of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder; 70
(p) Indebtedness of the Borrower or any Restricted Subsidiary 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 that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) Indebtedness existing under or permitted by the Existing Credit Agreement as in effect on the Closing Date (including incremental term loans and incremental increases in the Revolving Credit Commitment permitted by the Existing Credit Agreement as in effect on the Closing Date). provided, that in the event that any Indebtedness in the form of dividendssecured term loans or secured notes are incurred or issued by the Borrower under this Section 10.1 (other than as permitted under clauses (e) and (f)) during the term of this Agreement and the All-In Yield of such Indebtedness exceeds the All-In Yield on the Term Loan outstanding at such time by more than 0.50%, intercompany advances or otherwise) then the Applicable Margin for the purpose Term Loan shall automatically be increased to a level such that the All-In Yield on the Term Loan shall be 0.50% less than the All-In Yield on such Indebtedness. For all purposes of enabling this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to pay determine in its sole discretion the Obligationsclause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassified.
Appears in 1 contract
Limitations on Indebtedness. Create(a) The Company will not, incurand will not permit any Subsidiary to, assume create, issue, assume, guarantee or suffer to exist otherwise incur or in any Indebtedness manner be or become liable in respect of any Indebtedness, except:
(ai) Indebtedness evidenced by the Notes and the Subsidiary Guaranty;
(ii) Indebtedness of a Subsidiary Guarantor evidenced by the Guaranty delivered pursuant to the Bank Credit Agreement; provided that the Indebtedness evidenced by any such Guaranty constitutes Qualified Subsidiary Indebtedness;
(iii) Indebtedness of the Company and its Subsidiaries outstanding as of the date of this Agreement and described on SCHEDULE 5.15 hereto;
(iv) additional Indebtedness of the Company and its Subsidiaries; provided that at the time of creation, issuance, assumption, guarantee or incurrence thereof and after giving effect thereto and to the application of the proceeds thereof:
(1) the Obligations ratio of Consolidated Indebtedness to Total Asset Value as at such date shall not exceed 0.55 to 1.00;
(excluding Specified Hedge Obligations permitted pursuant 2) the ratio of Total Unencumbered Asset Value to Section 10.1(b))Total Unsecured Indebtedness as at such date shall not be less than 1.75 to 1.00;
(3) the ratio of Total Secured Indebtedness to Total Asset Value as at such date shall not exceed 0.40 to 1.00;
(4) Total Unsecured Subsidiary Indebtedness as at such date shall not exceed 10% of Total Asset Value as at such date; and
(v) Indebtedness of a Subsidiary to the Company or to a Wholly-owned Subsidiary and Indebtedness of the Company to a Wholly-owned Subsidiary.
(b) The Company will not as at the end of each fiscal quarter permit Total Unsecured Subsidiary Indebtedness incurred in connection with a Hedging Agreement which is entered into for interest rate, foreign currency, commodity or other business purposes and not for speculative purposes, with a counterparty reasonably satisfactory to the Administrative Agent; provided, that any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to the Administrative Agent;exceed 10% of Total Asset Value.
(c) Indebtedness existing on within the Closing Date and not otherwise permitted under this Sectionlimitations of SECTION 10.5(A)(III) may be renewed, as set forth on Schedule 6.1(t)extended, and the renewalrefinanced, refinancing, extension and replacement replaced or refunded (but not the without increase in the aggregate principal amount) thereof;without regard to the limitations of SECTION 10.5(A)(IV).
(d) Indebtedness Any Person which becomes a Subsidiary after the date hereof shall for all purposes of this SECTION 10.5 be deemed to have created, issued, assumed or incurred at the Borrower and its Subsidiaries incurred in connection with Capital Leases in an aggregate amount, together with the aggregate amount of all purchase money Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (e) below, not to exceed $20,000,000 on any date of determination;
(e) purchase money Indebtedness of the Borrower and its Subsidiaries with respect to the purchase of Equipment in an aggregate amount, together with the aggregate amount of time it becomes a Subsidiary all Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (d) above, not to exceed $20,000,000 on any date of determination;
(f) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Parties;
(g) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a) through (e) of this Section; provided that neither the Borrower nor any Guarantor shall be permitted to incur Guaranty Obligations under this subsection (g) with respect to Indebtedness of any Subsidiary that is not such Person existing immediately after it becomes a Guarantor ;
(h) Indebtedness owed by (i) any Guarantor to the Borrower, (ii) the Borrower to any Guarantor, (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor to the Borrower or any Guarantor in an amount not to exceed $500,000, or (vi) the Borrower or any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,000;
(i) Indebtedness incurred pursuant to the issuance of Qualified Senior Unsecured Notes; provided that in the case of each issuance of such Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Indebtedness; and
(j) unsecured Subordinated Indebtedness; provided that in the case of each issuance of such Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Subordinated Indebtedness; provided, that no agreement or instrument with respect to Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower to make any payment to the Borrower or any Guarantor (in the form of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrower to pay the ObligationsSubsidiary.
Appears in 1 contract
Samples: Note Purchase Agreement (St Joe Co)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Notes and the Obligations (excluding Specified Hedge Obligations permitted pursuant to Section 10.1(b9.1(b))) or any guaranty of or suretyship arrangement for the Notes or other Obligations;
(b) Indebtedness incurred in connection with a and obligations owing under Hedging Agreement which is Agreements entered into for in order to manage existing or anticipated interest rate, foreign currency, exchange rate or commodity or other business purposes price risks and not for speculative purposes, with a counterparty reasonably satisfactory to the Administrative Agent; provided, that any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Closing Date and not otherwise permitted under this Section, as set forth Section 9.1 and listed on Schedule 6.1(t)9.1, and any refinancings, refundings, renewals or extensions thereof; provided that (i) the renewal, principal amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder, (ii) the final maturity date and weighted average life of such refinancing, refunding, renewal or extension shall not be prior to or shorter than that applicable to the Indebtedness prior to such refinancing, refunding, renewal or extension and replacement (but iii) any refinancing, refunding, renewal or extension of any Subordinated Indebtedness shall be (A) on subordination terms at least as favorable to the Lenders, (B) no more restrictive on the Borrower and its Consolidated Subsidiaries than the Subordinated Indebtedness being refinanced, refunded, renewed or extended and (C) in an amount not less than the increase in amount outstanding at the aggregate principal amount) thereoftime of such refinancing, refunding, renewal or extension;
(d) Indebtedness of the Borrower and its Subsidiaries incurred in connection with Capital Leases and purchase money Indebtedness in an aggregate amount, together with the aggregate amount of all purchase money Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (e) below, not to exceed $20,000,000 on 15,000,000 at any date of determinationtime outstanding;
(e) purchase money Indebtedness of a Person existing at the time such Person became a Subsidiary or assets were acquired from such Person in connection with an Investment permitted pursuant to Section 9.3, to the extent that (i) such Indebtedness was not incurred in connection with, or in contemplation of, such Person becoming a Subsidiary or the acquisition of such assets and (ii) neither the Borrower and its Subsidiaries nor any Consolidated Subsidiary thereof (other than such Person or any other Person that such Person merges with or that acquires the assets of such Person) shall have any liability or other obligation with respect to the purchase of Equipment in an aggregate amount, together with the aggregate amount of all Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (d) above, not to exceed $20,000,000 on any date of determinationsuch Indebtedness;
(f) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Parties;
(g) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a) through (e) of this Section; provided that neither the Borrower nor any Guarantor shall be permitted to incur Guaranty Obligations under this subsection Section 9.1;
(g) with respect accounts payable (for the deferred purchase price of Property or services) from time to Indebtedness time incurred in the ordinary course of any Subsidiary that is not a Guarantor business which, if greater than 90 days past the invoice or billing date, are being contested in good faith by appropriate proceedings if reserves adequate under GAAP shall have been established therefor;
(h) Indebtedness owed by Intercompany Debt, provided, that any such Intercompany Debt is (i) any Guarantor if in excess of $5,000,000, evidenced by an Intercompany Note which has been pledged to secure the BorrowerObligations and is in the possession of the Collateral Agent, and (ii) in the Borrower case of any Intercompany Debt owing to any Guarantora Credit Party from a Consolidated Subsidiary (other than a Credit Party), (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor subordinated to the Borrower or any Guarantor in an amount not Obligations upon terms and conditions satisfactory to exceed $500,000, or (vi) the Borrower or any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,000Collateral Agent;
(i) Indebtedness incurred arising from the honoring by a bank or other financial institution of a check, draft or other similar instrument drawn against insufficient funds in the ordinary course of business;
(j) Indebtedness under performance bonds, surety bonds, release, appeal and similar bonds (including Indebtedness associated with bonds or surety obligations pursuant to any Applicable Law in connection with the issuance operation of Qualified Senior Unsecured Notesany Pipeline Properties), statutory obligations or with respect to workers’ compensation claims, in each case incurred in the ordinary course of business, and reimbursement obligations in respect of any of the foregoing;
(k) Indebtedness of the Borrower to the General Partner to enable the General Partner to pay general and administrative costs and expenses of the Borrower in accordance with past practices;
(l) Indebtedness representing deferred compensation and other similar arrangements to employees of the Borrower and its Consolidated Subsidiaries incurred in the ordinary course of business;
(m) Indebtedness incurred by the Borrower or its Consolidated Subsidiaries in an acquisition or Asset Disposition under agreements providing for indemnification, the adjustment of the purchase price or other similar adjustments;
(n) Indebtedness in respect of netting services, overdraft protections and similar arrangements in each case in connection with cash management or deposit accounts;
(o) Indebtedness incurred by the Borrower or any of its Consolidated Subsidiaries constituting reimbursement obligations with respect to letters of credit, bank guarantees or similar instruments issued in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to similar reimbursement type obligations; provided that in upon the case drawing of each issuance such letters of credit or the incurrence of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or incurrence;
(p) unsecured guarantees of Subsidiary obligations (other than obligations for borrowed money);
(q) Indebtedness of the Borrower incurred in connection with a senior or subordinated unsecured note offering, provided that (i) no Default or Event of Default shall have has occurred and be is continuing or would be caused by occur after giving effect to such incurrence, (ii) after giving effect to the issuance incurrence of such Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that on a Pro Forma Basis, the Borrower would shall be in compliance with all covenants contained set forth in Article VIII as of the most recently ended fiscal quarter of the Borrower, (iii) has a final maturity date no earlier than the date that is six months after the final maturity date of the Revolver Facility and (iv) the documentation for which contains covenants no more restrictive than those set forth in this Agreement on a pro forma basis after giving effect to the issuance of any such IndebtednessAgreement; and
(jr) unsecured Subordinated Indebtedness; provided that in the case of each issuance of such Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated additional Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect not otherwise permitted pursuant to the issuance of any such Subordinated Indebtedness; provided, that no agreement or instrument with respect to Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of 9.1 in an aggregate principal amount not to exceed $50,000,000 at any Subsidiary of the Borrower to make any payment to the Borrower or any Guarantor (in the form of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrower to pay the Obligationstime outstanding.
Appears in 1 contract
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations (excluding Specified Hedge Obligations to the extent permitted pursuant to Section 10.1(b11.1(b));
(b) Indebtedness incurred in connection with a Hedging Agreement which is and obligations owing under Hedge Agreements entered into for in order to manage existing or anticipated interest rate, foreign currency, exchange rate or commodity or other business purposes price risks and not for speculative purposes, with a counterparty reasonably satisfactory to the Administrative Agent; provided, that any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Closing Date and not otherwise permitted under this Section, as set forth listed on Schedule 6.1(t)7.1(u) and any refinancings, refundings, renewals or extensions thereof; provided that (i) the principal amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to accrued but unpaid interest on the refinanced Indebtedness and any 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, (ii) the renewal, final maturity date and weighted average life of such refinancing, refunding, renewal or extension shall not be prior to or shorter than that applicable to the Indebtedness prior to such refinancing, refunding, renewal or extension and replacement (but iii) any refinancing, refunding, renewal or extension of any Subordinated Indebtedness shall be (A) on subordination terms at least as favorable to the Lenders, (B) no more restrictive on Holdings and its Subsidiaries than the Subordinated Indebtedness being refinanced, refunded, renewed or extended and (C) in an amount not less than the increase in amount outstanding at the aggregate principal amount) thereoftime of such refinancing, refunding, renewal or extension;
(d) Indebtedness of the Borrower and its Subsidiaries incurred in connection with Capital Leases and Indebtedness incurred for the purpose of financing all of any part of the purchase price of cost of design, construction, installation, improvement or acquisition of personal or real property used in the business of Holdings or any of its Subsidiaries, in an aggregate amount, together with the aggregate principal amount of all purchase money Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (e) below, not to exceed $20,000,000 on 25,000,000 at any date of determinationtime outstanding and any refinancings, refundings, renewals or extensions thereof meeting the conditions set forth in the proviso in Section 11.1(c);
(e) purchase money Indebtedness of a Person existing at the Borrower and its Subsidiaries time such Person became a Subsidiary or assets were acquired from such Person in connection with an Investment permitted pursuant to Section 11.3, to the extent that (i) such Indebtedness was not incurred in connection with, or in contemplation of, such Person becoming a Subsidiary or the acquisition of such assets, (ii) no Credit Party nor any Subsidiary thereof (other than such Person or any other Person that such Person merges with or that acquires the assets of such Person) shall have any liability or other obligation with respect to the purchase of Equipment in an aggregate amount, together with such Indebtedness and (iii) the aggregate outstanding principal amount of all such Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (d) above, does not to exceed $20,000,000 on 25,000,000 at any date of determinationtime outstanding, and any refinancings, refundings, renewals or extensions thereof meeting the conditions set forth in the proviso in Section 11.1(c);
(f) Guaranty Obligations in favor with respect to Indebtedness otherwise permitted to be incurred pursuant to subsections (a) through (e), (i), (j), (k), (l) and (n) of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Parties;
this Section 11.1; provided that (gi) any Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections clause (a) through (ek) of this Section; provided that neither Section shall be considered an Investment in a Foreign Subsidiary and shall be permitted under this clause (f) only to the Borrower nor extent such Investment is permitted under Section 11.3, (ii) any Guarantor Guaranty Obligations with respect to Indebtedness permitted pursuant to clause (i) of this Section shall be subordinated to the same extent as the subordination of such Indebtedness and (iii) Holdings shall not be permitted to incur any Guaranty Obligations under this subsection (g) with respect to Indebtedness of permitted pursuant to Section 11.1(n);
(g) intercompany Indebtedness (i) owed by any Credit Party to another Credit Party, (ii) owed by any Non-Guarantor Subsidiary to any Credit Party in an aggregate principal amount not to exceed $15,000,000 at any time outstanding (provided that is any Indebtedness owed by such Non-Guarantor Subsidiary to any Credit Party pursuant to this clause (ii) shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent and shall be pledged and delivered (together with all collateral or other security securing such promissory note) to the Administrative Agent pursuant to the Security Documents), (iii) owed by any Credit Party to any Non-Guarantor Subsidiary in an aggregate principal amount not to exceed $30,000,000 at any time outstanding (provided, that such Indebtedness shall be subordinated to the Obligations in a manner reasonably satisfactory to the Administrative Agent) and (iv) owed by any Non-Guarantor Subsidiary to any other Non-Guarantor Subsidiary;
(h) Indebtedness owed arising from the honoring by a bank or other financial institution of a check, draft or other similar instrument drawn against insufficient funds in the ordinary course of business;
(i) any Guarantor to the Borrower, (ii) the Borrower to any Guarantor, (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor to the Borrower or any Guarantor unsecured Subordinated Indebtedness in an aggregate principal amount not to exceed $500,00030,000,000 at any time outstanding;
(j) Indebtedness under performance and completion guaranties, performance bonds, surety bonds, release, appeal and similar bonds, statutory obligations or with respect to workers’ compensation claims, in each case incurred in the ordinary course of business, and reimbursement obligations in respect of any of the foregoing;
(vik) the Borrower Indebtedness incurred by Foreign Subsidiaries to third parties other than Holdings or any Guarantor to any Subsidiary that is not a Guarantor of its Subsidiaries in an aggregate principal amount not to exceed $500,00025,000,000 at any time outstanding;
(il) Indebtedness incurred pursuant to the issuance of Qualified Senior Unsecured NotesSubordinated Notes Indenture in an aggregate principal amount not to exceed $500,000,000 at any time outstanding, and any refinancings, refundings, renewals or extensions thereof; provided that in the case of each issuance of such Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance principal amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to the accrued but unpaid interest on such refinanced Indebtedness and any reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance terms of any such Indebtednessrefinancings, refundings, renewals or extensions thereof, taken as a whole, are no less favorable to the Lenders or the Credit Parties and the Limited Guarantor Subsidiary, as applicable;
(m) Indebtedness arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guaranties or letters of credit, surety bonds or performance bonds securing the performance of the Borrower or any Subsidiary thereof pursuant to such agreements, in connection with Permitted Acquisitions or permitted Asset Dispositions of any business, assets or Subsidiary of the Borrower or any of its Subsidiaries;
(n) Indebtedness under the Foreign L/C Facility in an aggregate principal amount not to exceed $100,000,000 at any time outstanding; provided that only up to $50,000,000 of such Indebtedness may be recourse to Holdings, but shall not be secured by a Lien on any of the assets of Holdings;
(o) Indebtedness in support of that certain contract with the California Department of Forestry and Fire Protection (Proposal 7CA76884) in an aggregate principal amount not to exceed $10,000,000 at any time outstanding;
(p) Indebtedness consisting of loans by the Borrower to Holdings for purposes otherwise permitted pursuant to Section 11.6 to be distributed to Holdings;
(q) Indebtedness consisting of promissory notes issued by Holdings or any Subsidiary thereof to current or former officers, directors, consultants or employees (or their respective estates, spouses, former spouses or family members) of Holdings or any Subsidiary thereof to purchase or redeem Capital Stock of Holdings or any Subsidiary thereof to the extent permitted pursuant to Section 11.6(d)(iv); and
(jr) unsecured Subordinated Indebtedness; provided that in Indebtedness of a JV Subsidiary to Holdings, any other Credit Party or the case Limited Guarantor Subsidiary, if applicable, and to the other holders of each issuance Capital Stock of such Subordinated IndebtednessJV Subsidiary, (i) no Default or Event so long as the percentage of Default shall have occurred and be continuing or would be caused by the issuance aggregate amount of such Subordinated Indebtedness and (ii) of such JV Subsidiary owed to such other holders of its Capital Stock does not exceed the Administrative Agent shall have received satisfactory written evidence that percentage of the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to aggregate outstanding amount of the issuance Capital Stock of any such Subordinated IndebtednessJV Subsidiary held by such other holders; provided, that no agreement any such Indebtedness owed to Holdings, any other Credit Party or instrument with respect to Indebtedness permitted to the Limited Guarantor Subsidiary, if applicable, shall be incurred evidenced by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower to make any payment a demand promissory note in form and substance satisfactory to the Borrower Administrative Agent and shall be pledged and delivered (together with all collateral or any Guarantor (in other security securing such promissory note) to the form of dividends, intercompany advances or otherwise) for Administrative Agent pursuant to the purpose of enabling the Borrower to pay the ObligationsSecurity Documents.
Appears in 1 contract
Limitations on Indebtedness. CreateNo Indenture Obligor shall, nor shall it permit its Obligor Subsidiaries to, directly or indirectly, create, incur, assume issue, assume, guaranty or suffer otherwise become liable with respect to, or become responsible for the payment of, contingently or otherwise ("incur"), any Indebtedness. Notwithstanding the foregoing limitations, the limitations of this Section 1008 shall not apply to exist any Indebtedness exceptthe incurrence of the following Indebtedness:
(ai) Indebtedness of the Company evidenced by the Securities, Indebtedness of any Guarantor in respect of the Guaranties with respect thereto and Indebtedness of the Obligors in respect of all other Indenture Obligations and Indenture Documents;
(excluding Specified Hedge ii) Indebtedness of the Company evidenced by the New Tranche A Term Notes or under or in respect of the Term Loan Agreement, and all other obligations continued or incurred thereunder, Indebtedness of any guarantor in respect of the guaranties of the obligations under the Term Loan Agreement or the New Tranche A Term Notes, Indebtedness of PCI Chemicals Canada Company evidenced by the New Tranche B Notes, Indebtedness of any guarantor in respect of the guaranties of the obligations under the New Tranche B Notes Indenture or the New Tranche B Notes and Indebtedness in respect of all other Transaction Documents and all other obligations incurred thereunder;
(iii) Indebtedness of any Indenture Obligor or Obligor Subsidiaries constituting Existing Indebtedness and any extension, deferral, renewal, refinancing or refunding thereof, without increasing the aggregate principal amount of such Indebtedness then outstanding and covered thereby;
(iv) Indebtedness of any Obligor or Obligor Subsidiaries in respect of and in accordance with the terms of, the Exit Facility; provided that notwithstanding the terms of the Exit Facility, the aggregate principal amount of Indebtedness at any time outstanding under the Exit Facility shall not exceed $65,000,000;
(v) Capitalized Lease Obligations permitted pursuant of any Indenture Obligor or its Obligor Subsidiaries, including Indebtedness in respect of Capitalized Lease Obligations of any Indenture Obligor or its Obligor Subsidiary secured by Liens that secure the payment of all or part of the purchase price of assets or property acquired or constructed in the ordinary course of business after the date hereof; provided, however, that the aggregate principal amount of such Capitalized Lease Obligations, including such Indebtedness in respect of Capitalized Lease Obligations of Indenture Obligors and all of their respective Obligors Subsidiaries, does not exceed $10,000,000 in the aggregate outstanding at any time;
(vi) Indebtedness of PCI or the Company to Section 10.1(b)any of their respective Subsidiaries or of any such Subsidiary to PCI, the Company or another such 103 Subsidiary (but only so long as such Indebtedness is held by PCI, the Company or such Subsidiary);
(bvii) Indebtedness incurred in connection with a the CRC Portfolio and other Indebtedness, not secured by or subject to any Lien, under Hedging Agreement which is Obligations incurred in the ordinary course of PCI's or the Company's business or entered into for interest rate, foreign currency, commodity by the Company (or any other business purposes and not for speculative purposes, with a counterparty reasonably satisfactory to the Administrative Agent; provided, that any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing Person on the Closing Date and not otherwise permitted under this Section, as set forth on Schedule 6.1(t), and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(d) Indebtedness behalf of the Borrower and its Subsidiaries incurred in connection with Capital Leases in an aggregate amount, together Company with the aggregate amount of all purchase money Indebtedness express authority of the Borrower and its Subsidiaries incurred pursuant Company to subsection (ebind the Company with respect thereto) below, not to exceed $20,000,000 on for the sole purpose of offsetting any date of determination;
(e) purchase money Indebtedness of the Borrower and its Subsidiaries open position with respect to the purchase CRC Portfolio and otherwise mitigating any exposure in respect of Equipment the CRC Portfolio; provided, however, that in an aggregate amountthe case of foreign currency exchange or similar agreements which relate to other Indebtedness, together with such agreements do not increase the aggregate Indebtedness of any Indenture Obligor or its Obligor Subsidiaries outstanding other than as a result of fluctuations in foreign currency exchange rates, and in the case of interest rate protection agreements, only if the notional principal amount of all Indebtedness such interest rate protection agreement does not exceed the principal amount of the Borrower and its Subsidiaries incurred pursuant Indebtedness to subsection (d) above, not to exceed $20,000,000 on any date of determinationwhich such interest rate protection agreement relates;
(fviii) Guaranty Obligations Indebtedness, not secured by or subject to any Lien (except as shall, in favor the ordinary course of business, be backed by cash or cash equivalents), in respect of performance, completion, guaranty, surety and similar bonds, banker's acceptances, bills of exchange or letters of credit provided or endorsed by PCI, the Administrative Agent for Company or any of their respective Subsidiaries in the benefit ordinary course of the Administrative Agent and the other Secured Partiesbusiness;
(gix) Guaranty Obligations with Indebtedness, not secured by or subject to any Lien, in respect to Indebtedness permitted pursuant to subsections (a) through (e) of this Section; provided that neither the Borrower nor any Guarantor shall be permitted to incur Guaranty Obligations under this subsection (g) with respect to Indebtedness of any Subsidiary that is not a Guarantor ;
(h) Indebtedness owed by (i) any Guarantor guaranty (not otherwise referred to above) provided by PCI, the Company or any of their respective Subsidiaries in respect of any other Indebtedness permitted to be incurred hereunder; provided, however, that if such Indebtedness guaranteed is (x) subordinated in right of payment to any other Indebtedness of the Indenture Obligor thereof, then such guaranty shall be subordinated to Indebtedness of such guarantor to the Borrowersame extent, and (y) secured by a Lien otherwise permitted pursuant to Section 1012, then such guaranty may be so secured, (ii) the Borrower to any Guarantorindemnities in favor of Persons issuing title insurance policies, (iii) indemnifications in the Transaction Documents and in any Guarantor to any other Guarantoragreements contemplated thereunder or thereby, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantorindemnities in the Organizational Documents of PCI and its Subsidiaries, and (v) any Subsidiary customary indemnities given to a purchaser of assets from the Company; provided that the sale of such assets by the Company is not a Guarantor permitted pursuant to the Borrower terms hereof;
(x) Indebtedness subject to Liens permitted by Section 1012 (including purchase money Indebtedness and Attributable Indebtedness in respect of Sale and Leaseback Transactions);
(xi) Indebtedness incurred in respect of New Other Secured Notes and Claims; 104
(xii) any refinancing, refunding, deferral, renewal or extension (each, a "Refinancing") of any Indebtedness of any Obligor or any Guarantor Obligor Subsidiary permitted by subsections (ii), (iii), (iv), (x) and (xi) (the "Refinancing Indebtedness"); provided, however, that (a) such Refinancing Indebtedness does not exceed the aggregate principal amount of the Indebtedness so refinanced, plus the amount of any premium required to be paid in connection with such Refinancing in accordance with the terms of such Indebtedness or the amount of any premium reasonably determined by such Obligor or Obligor Subsidiary as necessary to accomplish such Refinancing, plus the amount of reasonable and customary out-of-pocket fees and expenses payable in connection therewith, (b) the Refinancing Indebtedness does not provide for any mandatory redemption, amortization or sinking fund requirement in an amount greater than or at a time prior to the amounts and times specified in the Indebtedness being refinanced, refunded, deferred, renewed or extended and (c) if the Indebtedness being refinanced, refunded, deferred, renewed or extended is subordinated to the Indebtedness of the Obligor or Obligor Subsidiaries under the Securities, the Refinancing Indebtedness incurred to refinance, refund, defer, renew or extend such Indebtedness is subordinated in right of payment to the Obligations on terms at least as favorable to the Holders as those contained in the documentation governing the Indebtedness being so refinanced, refunded, deferred, renewed or extended; or
(xiii) in addition to Indebtedness permitted by clauses (i) through (xi) of this Section 1008, Indebtedness of such Obligors and Obligor Subsidiaries, taken together, in an aggregate principal amount not to exceed $500,000, or (vi) the Borrower or 200,000 at any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,000;
(i) Indebtedness incurred pursuant to the issuance of Qualified Senior Unsecured Notes; provided that in the case of each issuance of such Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Indebtedness; and
(j) unsecured Subordinated Indebtedness; provided that in the case of each issuance of such Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Subordinated Indebtednesstime outstanding; provided, however, that no agreement or instrument with respect to Indebtedness permitted to be incurred by pursuant to this Section 1008 (except for the Exit Facility) shall restrict, limit contain any terms that are more restrictive on or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower to make any payment to the Borrower obligor of such Indebtedness than those set forth in this Indenture, whether taken individually or any Guarantor (in the form of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrower to pay the Obligationsas a whole.
Appears in 1 contract
Samples: Indenture (Pioneer Companies Inc)
Limitations on Indebtedness. Create(a) The Company will not, incurand ---------------------------------------- will not permit any Restricted Subsidiary to, assume create, assume, guarantee or suffer to exist otherwise incur or in any Indebtedness manner be or become liable in respect of any Indebtedness, except:
(a1) Indebtedness evidenced by the Obligations (excluding Specified Hedge Obligations permitted pursuant to Section 10.1(b))Notes;
(b) Indebtedness incurred in connection with a Hedging Agreement which is entered into for interest rate, foreign currency, commodity or other business purposes and not for speculative purposes, with a counterparty reasonably satisfactory to the Administrative Agent; provided, that any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Closing Date and not otherwise permitted under this Section, as set forth on Schedule 6.1(t), and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(d2) Indebtedness of the Borrower Company and its Restricted Subsidiaries incurred in connection with Capital Leases in an aggregate amount, together with outstanding as of the aggregate amount date of all purchase money this Agreement and described on Schedule II hereto;
(3) Senior Indebtedness of the Borrower Company and its Subsidiaries incurred pursuant Indebtedness of any of the Company's Restricted Subsidiaries, provided that at the time of -------- creation, issuance, assumption, guarantee or incurrence thereof and after giving effect thereto and to subsection (e) below, not to exceed $20,000,000 on any date the application of determination;the proceeds thereof:
(ei) purchase money the sum of (A) Senior Indebtedness of the Borrower and its Company (including, without limitation, all Senior Indebtedness of the Company secured by Liens permitted to be incurred within the limitations of subclause (iii) below) plus (B) Indebtedness of ---- Restricted Subsidiaries with respect permitted to be incurred within the purchase limitations of Equipment in an aggregate amountsubclause (iii) below shall not exceed 300% of Adjusted Consolidated Tangible Net Worth,
(ii) Subordinated Indebtedness of the Company shall not exceed 100% of the Consolidated Tangible Net Worth, together with and
(iii) the sum of (A) the aggregate amount of all Indebtedness of the Borrower and its Company secured by Liens permitted by (S)5.10(h) plus (B) ---- the aggregate amount of all Indebtedness of Restricted Subsidiaries incurred pursuant to subsection (d) above, shall not to exceed $20,000,000 on any date 10% of determinationAdjusted Consolidated Tangible Net Worth;
(f4) Guaranty Obligations in favor Subordinated Indebtedness of the Administrative Agent for Company, provided that at the benefit -------- time of issuance thereof and after giving effect thereto and to the application of the Administrative Agent and proceeds thereof, the other Secured Parties;aggregate amount of all Subordinated Indebtedness of the Company shall not exceed 100% of Consolidated Tangible Net Worth; and
(g5) Guaranty Obligations Indebtedness of a Restricted Subsidiary to the Company or to a Wholly-owned Restricted Subsidiary.
(b) Indebtedness issued or incurred in accordance with respect to Indebtedness permitted pursuant to subsections the limitations of (aS)5.9(a) through may be renewed, extended or refunded (e) of this Section; provided that neither without increase in the Borrower nor any Guarantor original principal amount, which shall be permitted deemed to incur Guaranty Obligations under this subsection (g) with respect to Indebtedness of any Subsidiary that is not a Guarantor ;
(h) Indebtedness owed by (i) any Guarantor to the Borrower, (ii) the Borrower to any Guarantor, (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor to the Borrower or any Guarantor in an amount not to exceed be $500,000, or (vi) the Borrower or any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,000;
(i) Indebtedness incurred pursuant to the issuance of Qualified Senior Unsecured Notes; provided that 50,000,000 in the case of each issuance the Indebtedness issued pursuant to the Bank Agreement and without increase in principal amount remaining unpaid at the time of such renewal, extension or refunding in the case of any other Indebtedness), (i) provided that at the time of -------- such renewal, extension or refunding and after giving effect thereto, no Default or Event of Default would exist.
(c) Any Person which becomes a Restricted Subsidiary after the date hereof shall for all purposes of this (S)5.9 be deemed to have occurred and be continuing created, assumed or would be caused by incurred at the issuance time it becomes a Restricted Subsidiary all Indebtedness of such Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on Person existing immediately after it becomes a pro forma basis after giving effect to the issuance of any such Indebtedness; and
(j) unsecured Subordinated Indebtedness; provided that in the case of each issuance of such Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Subordinated Indebtedness; provided, that no agreement or instrument with respect to Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower to make any payment to the Borrower or any Guarantor (in the form of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrower to pay the ObligationsRestricted Subsidiary.
Appears in 1 contract
Samples: Note Agreement (U S Rentals Inc)
Limitations on Indebtedness. CreateThe Borrower will not, and will not permit any of its Subsidiaries to, create, incur, assume or suffer permit to exist any Indebtedness Indebtedness, except:
(a) Indebtedness created under the Obligations (excluding Specified Hedge Obligations permitted pursuant to Section 10.1(b))Loan Documents;
(b) Indebtedness incurred of the Borrower or any of its Subsidiaries existing on the date hereof and set forth in connection Schedule 6.01, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof or increase the amount or nature of the collateral with a Hedging Agreement which is entered into for interest rate, foreign currency, commodity or other business purposes and not for speculative purposes, with a counterparty reasonably satisfactory to the Administrative Agent; provided, that any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to the Administrative Agentrespect thereto;
(c) Indebtedness existing of the Borrower or any of it Subsidiaries incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the Closing Date and not otherwise permitted under this Section, as set forth on Schedule 6.1(t)acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the renewaloutstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof; provided, refinancingthat (i) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, extension and replacement (but not the increase in ii) the aggregate principal amountamount of Indebtedness permitted by this clause (c) thereofshall not exceed 100% of the cost of acquiring, constructing or improving such fixed or capital assets;
(d) Indebtedness of the Borrower and or any of its Subsidiaries incurred under any Hedging Agreement entered into in connection with Capital Leases in an aggregate amount, together the ordinary course of business and with the aggregate amount of all purchase money Indebtedness prior written consent of the Borrower and its Subsidiaries incurred pursuant to subsection (e) belowLender, which consent shall not to exceed $20,000,000 on any date of determinationbe unreasonably withheld;
(e) purchase money Subordinated Debt of the Borrower not to exceed an aggregate of $3,000,000, incurred pursuant to the Investment Agreement, and the agreements referred to in the definition of "Second Tranche"; and
(f) unsecured Indebtedness of the Borrower and or any of its Subsidiaries with respect to the purchase not permitted by any other clause of Equipment this Section in an aggregate amount, together with the aggregate principal amount of all such Indebtedness of at any one time outstanding up to but not exceeding $500,000. Notwithstanding the foregoing, the Borrower will not, and will not permit any of its Subsidiaries incurred pursuant to, create, incur, assume or permit to subsection exist any Indebtedness owing to SBI INVESTMENTS (d) above, not to exceed $20,000,000 on any date of determination;
(f) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Parties;
(g) Guaranty Obligations with respect to than Borrower's Indebtedness permitted pursuant to subsections (a) through by clause (e) of this Section; provided that neither the Borrower nor any Guarantor shall be permitted to incur Guaranty Obligations under this subsection (gabove) with respect to Indebtedness of any Subsidiary that is not a Guarantor ;
(h) Indebtedness owed by (i) any Guarantor to the Borrower, (ii) the Borrower to any Guarantor, (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor to the Borrower or any Guarantor in an amount not to exceed $500,000, or (vi) the Borrower or any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,000;
(i) Indebtedness incurred pursuant to the issuance of Qualified Senior Unsecured Notes; provided that in the case of each issuance of such Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Indebtedness; and
(j) unsecured Subordinated Indebtedness; provided that in the case of each issuance of such Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Subordinated Indebtedness; provided, that no agreement or instrument with respect to Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower to make any payment to the Borrower or any Guarantor (in the form of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrower to pay the Obligationsits Affiliates.
Appears in 1 contract
Samples: Credit Agreement (Vfinance Inc)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations (excluding Specified Indebtedness and obligations owing under Hedge Obligations Agreements permitted pursuant to Section 10.1(b11.1(b));
(b) Indebtedness incurred in connection with a Hedging Agreement which is and obligations owing under Hedge Agreements entered into for in order to manage existing or anticipated interest rate, foreign currency, exchange rate or commodity or other business purposes price risks and not for speculative purposes, with a counterparty reasonably satisfactory to the Administrative Agent; provided, that any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Closing Date and not otherwise permitted under this Section, as set forth Section and listed on Schedule 6.1(t)7.21, and any refinancings, refundings, renewals or extensions thereof; provided that (i) the renewal, principal amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder, (ii) the final maturity date and weighted average life of such refinancing, refunding, renewal or extension shall not be prior to or shorter than that applicable to the Indebtedness prior to such refinancing, refunding, renewal or extension and replacement (but iii) any refinancing, refunding, renewal or extension of any Subordinated Indebtedness shall be (A) on subordination terms at least as favorable to the Lenders, (B) no more restrictive on the Borrower and its Subsidiaries than the Subordinated Indebtedness being refinanced, refunded, renewed or extended and (C) in an amount not less than the increase in amount outstanding at the aggregate principal amount) thereoftime of such refinancing, refunding, renewal or extension;
(d) Indebtedness of the Borrower and its Subsidiaries incurred in connection with Capital Leases and purchase money Indebtedness in an aggregate amount, together with the aggregate amount of all purchase money Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (e) below, not to exceed $20,000,000 on 25,000,000 at any date of determinationtime outstanding;
(e) purchase money Indebtedness of a Person existing at the time such Person became a Subsidiary or assets were acquired from such Person in connection with an Investment permitted pursuant to Section 11.3, to the extent that (i) such Indebtedness was not incurred in connection with, or in contemplation of, such Person becoming a Subsidiary or the acquisition of such assets, (ii) neither the Borrower and its Subsidiaries nor any Subsidiary thereof (other than such Person or any other Person that such Person merges with or that acquires the assets of such Person) shall have any liability or other obligation with respect to the purchase of Equipment in an aggregate amount, together with such Indebtedness and (iii) the aggregate outstanding principal amount of all such Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (d) above, does not to exceed $20,000,000 on 30,000,000 at any date of determinationtime outstanding;
(f) Guaranty Obligations Indebtedness of Foreign Subsidiaries in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Partiesan aggregate principal amount not to exceed $75,000,000 at any time outstanding;
(g) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a) through (ef) of this Section; provided that neither the Borrower nor any Guarantor shall be permitted to incur Guaranty Obligations under this subsection (g) with respect to Indebtedness of any Subsidiary that is not a Guarantor ;
(h) unsecured intercompany Indebtedness owed by (i) owed by any Guarantor Credit Party to the Borroweranother Credit Party, (ii) the Borrower owed by any Foreign Subsidiary to any Guarantoranother Foreign Subsidiary, (iii) owed by any Guarantor Foreign Subsidiary to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor to the Borrower or any Guarantor Credit Party in an aggregate principal amount not to exceed $500,000, or 75,000,000 at any time outstanding (vi) the Borrower or provided that any Guarantor Indebtedness owed by such Foreign Subsidiary to any Credit Party pursuant to this clause (iii) shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent) and (iv) owed by any Credit Party to any Foreign Subsidiary (provided, that is not such Indebtedness shall be subordinated to the Obligations in a Guarantor in an amount not manner reasonably satisfactory to exceed $500,000the Administrative Agent);
(i) Indebtedness incurred pursuant to arising from the issuance honoring by a bank or other financial institution of Qualified Senior Unsecured Notesa check, draft or other similar instrument drawn against insufficient funds in the ordinary course of business;
(j) Subordinated Indebtedness of the Borrower and its Subsidiaries; provided provided, that in the case of each issuance incurrence of such Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance incurrence of such Indebtedness Subordinated Indebtedness, and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Indebtedness; and
(j) unsecured Subordinated Indebtedness; provided that in the case of each issuance of such Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis Pro Forma Basis after giving effect to the issuance of any such Subordinated Indebtedness; provided;
(k) Indebtedness under performance bonds, that no agreement surety bonds, release, appeal and similar bonds, statutory obligations or instrument with respect to Indebtedness permitted to be workers’ compensation claims, in each case incurred by this Section shall restrictin the ordinary course of business, limit or otherwise encumber (by covenant or otherwise) the ability and reimbursement obligations in respect of any Subsidiary of the foregoing;
(l) Indebtedness consisting of promissory notes issued to current or former officers, directors and employees (or their respective family members, estates or trusts or other entities for the benefit of any of the foregoing) of the Borrower or its Subsidiaries to make purchase or redeem Capital Stock or options of the Borrower permitted pursuant to Section 11.6(d)(ii); provided that the aggregate principal amount of all such Indebtedness shall not exceed $1,000,000 at any payment time outstanding;
(m) Indebtedness of Fossil Partners, Fossil Group Europe GmbH, Fossil Asia Pacific Ltd. and/or any other Foreign Subsidiary under the Commercial Letter of Credit Facility not to exceed $100,000,000 in aggregate principal amount at any time outstanding, and Guaranty Obligations of the Borrower or any Subsidiary Guarantor with respect to such Indebtedness;
(n) additional unsecured Indebtedness not otherwise permitted pursuant to this Section in the form of dividends, intercompany advances or otherwisean aggregate principal amount not to exceed $5,000,000 at any time outstanding; and
(o) for the purpose of enabling the Borrower unsecured Guaranty Obligations arising with respect to pay the Obligationscustomary indemnification obligations owed to purchasers in connection with Asset Dispositions permitted by Section 11.5.
Appears in 1 contract
Samples: Credit Agreement (Fossil Inc)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) The Company will not, and will not permit any Restricted Subsidiary to, Incur, directly or indirectly, any Indebtedness; provided, however, that the Obligations (excluding Specified Hedge Obligations permitted pursuant Company may Incur Indebtedness if the Consolidated EBITDA Coverage Ratio at the date of such Incurrence and after giving effect thereto exceeds 2.25 to Section 10.1(b));1.0.
(b) Notwithstanding paragraph (a), the following Indebtedness incurred in connection with a Hedging Agreement which is entered into for interest rate, foreign currency, commodity or other business purposes and not for speculative purposes, with a counterparty reasonably satisfactory to the Administrative Agent; provided, that any counterparty that is a Lender or an Affiliate thereof shall may be deemed satisfactory to the Administrative Agent;Incurred:
(c) Indebtedness existing on the Closing Date and not otherwise permitted under this Section, as set forth on Schedule 6.1(t), and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(d1) Indebtedness of the Borrower Company pursuant to one or more Credit Facilities (and its Subsidiaries incurred in connection with Capital Leases in an aggregate amountthe guarantee of such Indebtedness by Restricted Subsidiaries); provided, together with however, that the aggregate amount of all purchase money such Indebtedness outstanding at such time shall not exceed $350,000,000 less any amounts derived from Asset Sales and applied to the required permanent reduction of Senior Indebtedness (and a permanent reduction of the related commitment to lend or amount available to be reborrowed in the case of a revolving credit facility) under such Credit Facilities as contemplated by Section 4.15;
(2) Indebtedness of the Borrower Company or a Restricted Subsidiary owed to and its Subsidiaries incurred pursuant held by a Restricted Subsidiary or Indebtedness of a Restricted Subsidiary owed to subsection and held by the Company; provided, however, that any subsequent issuance or transfer of any Capital Stock that results in such Restricted Subsidiary to whom Indebtedness is owed ceasing to be a Restricted Subsidiary or any transfer of such Indebtedness (eother than to the Company or another Restricted Subsidiary) belowshall be deemed, not in each case, to exceed $20,000,000 on any date constitute the Incurrence of determinationsuch Indebtedness;
(e3) purchase money The Subsidiary Guarantees, if any, and Indebtedness incurred in exchange for, or the proceeds of the Borrower and its Subsidiaries with respect which are used to the purchase of Equipment in an aggregate amount, together with the aggregate amount of all Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (d) above, not to exceed $20,000,000 on Refinance any date of determination;
(f) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Parties;
(g) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections by this clause (a) through (e) of this Section3); provided provided, however, that neither the Borrower nor any Guarantor shall be permitted to incur Guaranty Obligations under this subsection (g) with respect to Indebtedness of any Subsidiary that is not a Guarantor ;
(h) Indebtedness owed by (i) the principal amount of the Indebtedness so Incurred shall not exceed the principal amount of the Indebtedness so Refinanced (plus the amount of reasonable fees and expenses incurred in connection therewith, including any Guarantor to the Borrower, premium or defeasance costs) and (ii) the Borrower Indebtedness so Incurred (A) shall not mature prior to the Stated Maturity of the Indebtedness so Refinanced and (B) shall have an Average Life equal to or greater than the remaining Average Life of the Indebtedness so Refinanced;
(4) Indebtedness of the Company or any GuarantorRestricted Subsidiary (other than Indebtedness described in clause (1), (iii2) or (3) above) (x) outstanding on the Issue Date (including without limitation, the Issuer Loans, the guarantee of the Company issued under the Secured Note Indenture and guarantees of any Guarantor Subsidiaries of the Company issued thereunder, the Company's 6 1/2% Senior Notes due 2003, the Company's 6 3/4% Senior Notes due 2005, the Company's 6.95% Senior Notes due 2008, the Company's 7 3/8% Senior Notes due 2018, the Company's 9 1/8% Senior Notes due 2003, the Company's 9 1/2% Senior Notes due 2008, and the 10 1/4% Senior Notes due 2003 of Cliffs Drilling Company) or Incurred pursuant to agreements as in effect on the Issue Date and (y) Indebtedness Incurred in exchange for, or the proceeds of which are used to Refinance, any other GuarantorIndebtedness permitted by this clause (4) or permitted by clause (a) above; provided, however, that (ivi) the principal amount of the Indebtedness so Incurred shall not exceed the principal amount of the Indebtedness Refinanced (plus the amount of reasonable fees and expenses incurred in connection therewith, including any Subsidiary that is premium or defeasance costs); and (ii) the Indebtedness so Incurred (A) shall not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor mature prior to the Borrower Stated Maturity of the Indebtedness so Refinanced and (B) shall have an Average Life equal to or greater than the remaining Average Life of the Indebtedness so Refinanced;
(5) Indebtedness of the Company or any Guarantor Restricted Subsidiary consisting of guarantees in connection with any synthetic lease obligations of Persons Incurred to finance the construction or upgrade of the drillship Deepwater Frontier and the drillship Deepwater Pathfinder pursuant to agreements governing such obligations;
(6) Acquired Indebtedness of any Restricted Subsidiary in an aggregate amount not to exceed $500,000300,000,000, or (vi) the Borrower or any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,000;
(i) Indebtedness incurred pursuant to the issuance of Qualified Senior Unsecured Notes; provided that in the case of each issuance of such Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement Company on a pro forma basis after giving effect could Incur $1.00 of additional Indebtedness pursuant to paragraph (a) of this covenant;
(7) Indebtedness of the Company or any Restricted Subsidiary consisting of guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock;
(8) The Incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Indebtedness; provided, however, that if any such Indebtedness ceases to be Non-Recourse Indebtedness of any Unrestricted Subsidiary, subject to the issuance definition of any "Unrestricted Subsidiary," such Indebtednessevent shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of the Company that was not permitted by this clause (8);
(9) Obligations of the Company or a Restricted Subsidiary under performance or surety bonds relating to building contracts for the construction of drilling rigs, drillships or similar vessels or contracts for the installation of related equipment;
(10) Hedging Obligations; and
(j11) unsecured Indebtedness of the Company or any Restricted Subsidiary in an aggregate principal amount which, together with all other Indebtedness of the Company then outstanding (other than Indebtedness permitted by clauses (1) through (10) of this paragraph (b) or paragraph (a)) does not exceed $50,000,000.
(c) Notwithstanding paragraphs (a) and (b) of this Section 4.9, the Company shall not issue any Indebtedness if the proceeds thereof are used, directly or indirectly, to repay, prepay, redeem, defease, retire, refund or refinance any Subordinated Indebtedness; provided that in Obligations unless such Indebtedness shall be subordinated to the case of each issuance of Notes to at least the same extent as such Subordinated IndebtednessObligations.
(d) For purposes of determining compliance with the foregoing covenant, (i) no Default or Event in the event that an item of Default shall have occurred Indebtedness meets the criteria of more than one of the types of Indebtedness described above, the Company, in its sole discretion, will classify such item of Indebtedness and only be continuing or would be caused by required to include the issuance amount and type of such Subordinated Indebtedness in one of the above clauses and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would an item of Indebtedness may be divided and classified in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Subordinated Indebtedness; provided, that no agreement or instrument with respect to Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary more than one of the Borrower to make any payment to the Borrower or any Guarantor (in the form types of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrower to pay the ObligationsIndebtedness described above.
Appears in 1 contract
Samples: Indenture (R&b Falcon Corp)
Limitations on Indebtedness. Create(a) The Company will not, incurand will not permit any Subsidiary to, create, assume or suffer to exist incur or in any Indebtedness manner be or become liable in respect of any Indebtedness, except:
(a) the Obligations (excluding Specified Hedge Obligations permitted pursuant to Section 10.1(b))Ordinary Course Indebtedness;
(b) Indebtedness incurred in connection with a Hedging Agreement which is entered into for interest rate, foreign currency, commodity or other business purposes and not for speculative purposes, with a counterparty reasonably satisfactory to evidenced by the Administrative Agent; provided, that any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to the Administrative AgentNotes;
(c) Indebtedness existing on outstanding under the Closing Date and not otherwise permitted under this Section, as set forth on Schedule 6.1(t), and the renewal, refinancing, extension and replacement (but not the increase Bank Credit Agreement in the an aggregate principal amount) thereofamount not exceeding $75,000,000;
(d) Indebtedness of the Borrower and its Subsidiaries incurred in connection with Capital Leases in an aggregate amount, together with the aggregate amount of all purchase money Indebtedness of the Borrower and its Subsidiaries incurred outstanding pursuant to subsection (e) below, not to exceed $20,000,000 on any date of determinationPermitted Accounts Receivable Financing Facilities;
(e) purchase money Indebtedness of outstanding under the Borrower and its Subsidiaries with respect to the purchase of Equipment 1999 Note Purchase Agreement in an aggregate amount, together with the aggregate principal amount of all Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (d) above, not to exceed exceeding $20,000,000 on any date of determination50,000,000;
(f) Guaranty Obligations secured purchase money Indebtedness, including Capitalized Lease Obligations, originally incurred to acquire fixed assets provided that at the time of such acquisition, the aggregate amount remaining unpaid on all such Indebtedness secured by Liens on such fixed assets, whether or not assumed by the Company or its Subsidiaries, does not exceed an amount equal to the lesser of (i) 100%, in favor the case of fixed assets which are personal property (including Capitalized Leases of fixed assets which are personal property) or (ii) 80%, in the case of fixed assets which are real property, of the Administrative Agent for the benefit lesser of the Administrative Agent and total purchase price or Fair Market Value at the other Secured Partiestime of such acquisition as determined in good faith by the Board of Directors of the Company;
(g) Guaranty Obligations with respect to other Indebtedness permitted pursuant to subsections (a) through (e) of this Sectionfor borrowed money; provided that neither the Borrower nor any Guarantor shall be permitted to incur Guaranty Obligations under this subsection (g) with respect to Indebtedness of any Subsidiary that is not a Guarantor ;
(h) Indebtedness owed by (i) any Guarantor to at the Borrowertime of incurrence thereof, (ii) the Borrower to any Guarantor, (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor to the Borrower or any Guarantor in an amount not to exceed $500,000, or (vi) the Borrower or any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,000;
(i) Indebtedness incurred pursuant to the issuance of Qualified Senior Unsecured Notes; provided that in the case of each issuance of such Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Indebtedness and exist, (ii) the Administrative Agent aggregate outstanding principal amount of such Indebtedness plus (without duplication) the aggregate investment or claim held by purchasers of receivables in Foreign Receivable Financing Facilities shall have received not exceed 15% of Consolidated Net Worth at any time, (iii) the aggregate outstanding principal amount of all such Indebtedness of the Company or any Domestic Subsidiary (other than Indebtedness under Excluded Subsidiary Guaranties) shall not exceed 3% of Consolidated Net Worth at any time, and (iv) the aggregate outstanding principal amount of all such Indebtedness of any Foreign Subsidiary plus (without duplication) the aggregate investment or claim held by purchasers of receivables in Foreign Receivable Financing Facilities shall not exceed 15% of Consolidated Net Worth at any time;
(h) Indebtedness under any Swap Contract with a term not greater than 184 days entered into in the ordinary course of business for bona fide hedging purposes and not for speculation;
(i) Indebtedness of the Company which is not required to be redeemed, repurchased or otherwise prepaid by the Company (except on account of a default thereunder) on or prior to March 1, 2010, and which Indebtedness is subordinated to other Indebtedness of the Company (including the Notes) on terms which are reasonably satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance holders of any the Notes (such Indebtedness, "Subordinated Indebtedness"); and
(j) unsecured Subordinated IndebtednessIndebtedness refinancing or extending Indebtedness permitted above on terms and conditions no less favorable than the Indebtedness being refinanced; provided provided, however, that in the case of each issuance principal amount of such Subordinated Indebtedness, (i) new Indebtedness shall not exceed the outstanding principal amount of Indebtedness being refinanced immediately prior to such refinancing and that at the time of incurrence of such Indebtedness and after giving effect thereto no Default or Event of Default shall exits under this Agreement; and
(b) Any corporation which becomes a Subsidiary after the date hereof shall for all purposes of this §5.11 be deemed to have occurred and be continuing created, assumed or would be caused by incurred at the issuance time it becomes a Subsidiary all Indebtedness of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on corporation existing immediately after it becomes a pro forma basis after giving effect to the issuance of any such Subordinated Indebtedness; provided, that no agreement or instrument with respect to Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower to make any payment to the Borrower or any Guarantor (in the form of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrower to pay the ObligationsSubsidiary.
Appears in 1 contract
Samples: Note Agreement (K2 Inc)
Limitations on Indebtedness. CreateNo Indenture Obligor shall, nor shall it permit its Obligor Subsidiaries to, directly or indirectly, create, incur, assume issue, assume, guaranty or suffer to exist otherwise become liable with respect to, or become responsible for the payment of, contingently or otherwise ("incur"), any Indebtedness except:
(a) Indebtedness. Notwithstanding the Obligations (excluding Specified Hedge Obligations permitted pursuant to foregoing limitations, the limitations of this Section 10.1(b));
(b) Indebtedness incurred in connection with a Hedging Agreement which is entered into for interest rate, foreign currency, commodity or other business purposes and 1008 shall not for speculative purposes, with a counterparty reasonably satisfactory apply to the Administrative Agent; provided, that any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Closing Date and not otherwise permitted under this Section, as set forth on Schedule 6.1(t), and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(d) Indebtedness incurrence of the Borrower and its Subsidiaries incurred in connection with Capital Leases in an aggregate amount, together with the aggregate amount of all purchase money Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (e) below, not to exceed $20,000,000 on any date of determination;
(e) purchase money Indebtedness of the Borrower and its Subsidiaries with respect to the purchase of Equipment in an aggregate amount, together with the aggregate amount of all Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (d) above, not to exceed $20,000,000 on any date of determination;
(f) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Parties;
(g) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a) through (e) of this Section; provided that neither the Borrower nor any Guarantor shall be permitted to incur Guaranty Obligations under this subsection (g) with respect to Indebtedness of any Subsidiary that is not a Guarantor ;
(h) Indebtedness owed by (i) any Guarantor to the Borrower, (ii) the Borrower to any Guarantor, (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor to the Borrower or any Guarantor in an amount not to exceed $500,000, or (vi) the Borrower or any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,000;following Indebtedness:
(i) Indebtedness of the Company evidenced by the Securities, Indebtedness of any Guarantor in respect of the Guaranties with respect thereto and Indebtedness of the Obligors in respect of all other Indenture Obligations and Indenture Documents;
(ii) Indebtedness of PCI Chemicals Canada Company evidenced by the New Tranche B Notes, Indebtedness of any guarantor in respect of the guaranties of the New Tranche B Notes and Indebtedness in respect of all other Transaction Documents and all other obligations incurred pursuant to thereunder;
(iii) Indebtedness of any Indenture Obligor or Obligor Subsidiaries constituting Existing Indebtedness and any extension, deferral, renewal, refinancing or refunding thereof, without increasing the issuance aggregate principal amount of Qualified Senior Unsecured Notessuch Indebtedness then outstanding and covered thereby;
(iv) Indebtedness of PCI and the Company in respect of and in accordance with the terms of, the Exit Facility; provided that, notwithstanding the terms of the Exit Facility, the aggregate principal amount of Indebtedness at any time outstanding under the Exit Facility shall not exceed $65,000,000;
(v) Capitalized Lease Obligations of any Indenture Obligor or its Obligor Subsidiaries, including Indebtedness in respect of Capitalized Lease Obligations of any Indenture Obligor or its Obligor Subsidiary secured by Liens that secure the payment of all or part of the purchase price of assets or property acquired or constructed in the ordinary course of business after the date hereof; provided, however, that the aggregate principal amount of such Capitalized Lease Obligations, including such Indebtedness in respect of Capitalized Lease Obligations of Indenture Obligors and all of their respective Obligors Subsidiaries, does not exceed $10,000,000 in the aggregate outstanding at any time;
(vi) Indebtedness of PCI or the Company to any of their respective Subsidiaries or of any such Subsidiary to PCI, the Company or another such Subsidiary (but only so long as such Indebtedness is held by PCI, the Company or such Subsidiary);
(vii) Indebtedness[, not secured by or subject to any Lien,] under Hedging Obligations incurred in the ordinary course of PCI's or the Company's business; provided, however, [that if such Indebtedness shall be secured by or subject to any Liens permitted under Section 1012, the aggregate Indebtedness at anyone time outstanding in respect of all such Hedging Obligations which shall be secured by or subject to such Liens [cash] shall not exceed $[o], and provided, further,] that in the case of each issuance of such foreign currency exchange or similar agreements which relate to other Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by such agreements do not increase the issuance of such Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Indebtedness; and
(j) unsecured Subordinated Indebtedness; provided that Indenture Obligor or its Obligor Subsidiaries outstanding other than as a result of fluctuations in foreign currency exchange rates, and in the case of each issuance interest rate protection agreements, only if the notional principal amount of such Subordinated interest rate protection agreement does not exceed the principal amount of the Indebtedness to which such interest rate protection agreement relates;
(viii) Indebtedness, not secured by or subject to any Lien [(except as shall, in the ordinary course of business, be backed by cash)], in respect of performance, completion, guaranty, surety and similar bonds, banker's acceptances, bills of exchange or letters of credit provided or endorsed by PCI, the Company or any of their respective Subsidiaries in the ordinary course of business;
(ix) Indebtedness, not secured by or subject to any Lien, in respect of (i) no Default any guaranty (not otherwise referred to above) provided by PCI, the Company or Event any of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be their respective Subsidiaries in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance respect of any such Subordinated Indebtedness; provided, that no agreement or instrument with respect to other Indebtedness permitted to be incurred hereunder; provided, however, that if such Indebtedness guaranteed is subordinated in right of payment to any other Indebtedness of the Indenture Obligor thereof, then such guaranty shall be subordinated to Indebtedness of such guarantor to the same extent, (ii) indemnities in favor of Persons issuing title insurance policies, (iii) indemnifications in the Transaction Documents and in any agreements contemplated thereunder or thereby and (iv) indemnities in the Organizational Documents of PCI and its Subsidiaries;
(x) Indebtedness subject to Liens permitted by this Section shall restrict1012 (including Attributable Indebtedness in respect of Sale and Leaseback Transactions);
(xi) Indebtedness incurred in respect of New Other Secured Notes and Claims; or
(xii) any refinancing, limit refunding, deferral, renewal or otherwise encumber extension (each, a "Refinancing") of any Indebtedness of any Obligor or any Obligor Subsidiary permitted by covenant subsections (ii), (iv), (x) and (xii) (the "Refinancing Indebtedness"); provided, however, that (a) such Refinancing Indebtedness does not exceed the aggregate principal amount of the Indebtedness so refinanced, plus the amount of any premium required to be paid in connection with such Refinancing in accordance with the terms of such Indebtedness or otherwisethe amount of any premium reasonably determined by such Obligor as necessary to accomplish such Refinancing, plus the amount of reasonable and customary out-of-pocket fees and expenses payable in connection therewith, (b) the ability of Refinancing Indebtedness does not provide for any Subsidiary mandatory redemption, amortization or sinking fund requirement in an amount greater than or at a time prior to the amounts and times specified in the Indebtedness being refinanced, refunded, deferred, renewed or extended and (c) if the Indebtedness being refinanced, refunded, deferred, renewed or extended is subordinated to the Indebtedness of the Borrower Obligor or Obligor Subsidiaries under the Securities, the Refinancing Indebtedness incurred to make any refinance, refund, defer, renew or extend such Indebtedness is subordinated in right of payment to the Borrower Obligations on terms at least as favorable to the Holders as those contained in the documentation governing the Indebtedness being so refinanced, refunded, deferred, renewed or extended; provided, however, that no Indebtedness permitted to be incurred pursuant to this Section 1008 (except for the Exit Facility or any Guarantor (refinancing thereof permitted under this Indenture) shall contain any terms that are more restrictive on or to the obligor of such Indebtedness than those set forth in the form of dividendsthis Indenture, intercompany advances whether taken individually or otherwise) for the purpose of enabling the Borrower to pay the Obligationsas a whole.
Appears in 1 contract
Samples: Indenture (Pioneer Companies Inc)
Limitations on Indebtedness. CreateThe Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness exceptother than the following:
(a) Indebtedness of the Obligations Credit Parties, including under the Credit Documents, and any Permitted Refinancing Indebtedness of the Credit Parties in respect of any Indebtedness incurred under this clause (excluding Specified Hedge Obligations permitted pursuant a), in an aggregate outstanding principal amount not to Section 10.1(b))exceed the Maximum Aggregate Amount; provided, in each case, that (i) such Indebtedness constitutes Permitted Pari Passu Secured Indebtedness, with the priority in the payment of Foreclosure Proceeds as set forth in the Collateral Trust Agreement (or a Pari Passu Intercreditor Agreement) and otherwise in compliance with the Term Loan Supplements of each Class of Loans then outstanding, and (ii) with respect to any mandatory prepayments or mandatory offers to prepay such Indebtedness, such Indebtedness may participate in such mandatory prepayments or mandatory prepayment offers on a pro rata basis (or on a basis that is less than a pro rata basis, but not on a greater than pro rata basis) with any other Permitted Pari Passu Secured Indebtedness then outstanding;
(b) Indebtedness incurred in connection with a Hedging Agreement which is entered into for interest rate, foreign currency, commodity Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or other business purposes and not for speculative purposes, with a counterparty reasonably satisfactory made by any Restricted Subsidiary to the Administrative Agent; provided, that any counterparty that is a Lender Borrower or an Affiliate thereof shall be deemed satisfactory to the Administrative Agentits Restricted Subsidiaries;
(c) Indebtedness existing on the Closing Date and not otherwise permitted under this Sectionin respect of any bankers’ acceptance, as set forth on Schedule 6.1(t)bank guarantees, and the renewalletter of credit, refinancing, extension and replacement (but not the increase warehouse receipt or similar facilities entered into in the aggregate principal amount) thereofordinary course of business (including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims);
(d) subject to compliance with Section 9.5, Guarantee Obligations of (i) Restricted Subsidiaries in respect of Indebtedness of the Borrower or other Restricted Subsidiaries that is permitted to be incurred under this Agreement and its (ii) the Borrower in respect of Indebtedness of Restricted Subsidiaries that is permitted to be incurred in connection with Capital Leases in an aggregate amountunder this Agreement; provided that (A) if the Indebtedness being guaranteed under this Section 9.1(d) is subordinated to the Obligations, together with such Guarantee Obligations shall be subordinated to the aggregate amount Obligations or the Guarantee of all purchase money Indebtedness the Obligations, as applicable, of the Borrower or such Restricted Subsidiary, on terms at least as favorable to the Lenders as those contained in the subordination of such Indebtedness, and its Subsidiaries incurred pursuant to subsection (eB) no guarantee by any Restricted Subsidiary of any Indebtedness under clause (a) above or clause (g), clause (r) or clause (u) below, not to exceed $20,000,000 ) shall be permitted unless such Restricted Subsidiary shall have also provided a guarantee of the Obligations substantially on any date of determinationthe terms set forth in the Guarantee;
(e) purchase money Indebtedness Guarantee Obligations incurred in the ordinary course of the Borrower and its Subsidiaries with business in respect to the purchase of Equipment in an aggregate amountobligations of (or to) suppliers, together with the aggregate amount of all Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (d) abovecustomers, not to exceed $20,000,000 on any date of determinationfranchisees, lessors, licensees or sublicensees;
(f) Guaranty Obligations (i) Indebtedness incurred within 270 days of, or assumed in favor connection with, the acquisition, construction, lease, repair, replacement, expansion or improvement of fixed or capital assets to finance the Administrative Agent for acquisition, construction, lease, repair, replacement expansion, or improvement of such fixed or capital assets, (ii) Indebtedness arising under Capital Leases and (iii) any Permitted Refinancing Indebtedness issued or incurred to Refinance any such Indebtedness incurred in reliance on clause (f)(i); provided, in each case, that any Liens securing such Indebtedness do not apply to any assets other than the benefit of assets referred to in clause (f)(i) or subject to the Administrative Agent and the other Secured PartiesCapital Leases referred to in clause (f)(ii);
(g) Guaranty Obligations with respect Indebtedness (other than Indebtedness referred to Indebtedness permitted pursuant to subsections in clauses (a), (r) through and (eu) of this Section; provided that neither ) outstanding on the Borrower nor Initial Closing Date and listed on Schedule 9.1, and any Guarantor shall be permitted Permitted Refinancing Indebtedness issued or incurred to incur Guaranty Obligations under this subsection (g) with respect to Indebtedness of any Subsidiary that is not a Guarantor Refinance such Indebtedness;
(h) Indebtedness owed by during any period other than during an Interim Covenant Period, (i) any Guarantor Indebtedness of a Person or Indebtedness attaching to the Borrowerassets of a Person that, in either case, becomes a Restricted Subsidiary (ii) the Borrower to any Guarantor, (iii) any Guarantor to any other Guarantor, (iv) any or is a Restricted Subsidiary that is not survives a Guarantor merger with such Person or any of its Subsidiaries) or Indebtedness attaching to any other Subsidiary the assets that is not a Guarantor, (v) any Subsidiary that is not a Guarantor to are acquired by the Borrower or any Guarantor Restricted Subsidiary, in an amount each case after the Initial Closing Date as the result of a transaction permitted under this Agreement, provided that (A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not to exceed $500,000created in anticipation thereof, or and (viB) such Indebtedness is not guaranteed in any respect by the Borrower or any Guarantor Restricted Subsidiary (other than any such Person that so becomes a Restricted Subsidiary or is the survivor of a merger with such Person or any of its Subsidiaries), and (ii) any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(i) during any period other than an Interim Covenant Period, Indebtedness consisting of secured financings by a Foreign Subsidiary that in which no Credit Party’s assets are used to secure such Indebtedness;
(j) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations not in connection with money borrowed, in each case provided in the ordinary course of business or consistent with past practice, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice;
(k) obligations in respect of Cash Management Services and other Indebtedness in respect of netting services, automatic clearing house arrangements, employees’ credit or purchase cards, overdraft protections and similar arrangements in each case incurred in the ordinary course of business;
(l) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower or any Restricted Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services;
(m) Indebtedness arising from agreements of the Borrower or any Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with any acquisition or Disposition permitted hereunder;
(n) Indebtedness of the Borrower or any Restricted Subsidiary consisting of (i) obligations to pay insurance premiums or (ii) obligations contained in firm transportation or supply agreements or other take or pay contracts, in each case arising in the ordinary course of business;
(o) Indebtedness representing deferred compensation to employees, consultants or independent contractors of the Borrower (or, to the extent such work is not a Guarantor done for the Borrower or the Subsidiaries, any direct or indirect parent thereof) and the Restricted Subsidiaries incurred in the ordinary course of business;
(p) during any period other than during an amount not Interim Covenant Period, Indebtedness to exceed $500,000current or former officers, managers, consultants, directors and employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) to finance the purchase or redemption of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof) permitted by Section 9.6;
(q) Indebtedness associated with bonds or surety obligations required by Requirements of Law or by Governmental Authorities in connection with the operation of Oil and Gas Properties in the ordinary course of business;
(i) Indebtedness incurred pursuant to of the issuance of Qualified Senior Unsecured NotesCredit Parties under the Revolving Credit Agreement; provided that (1) the aggregate principal amount of all Indebtedness incurred in reliance on this clause (r) shall not exceed the greater of (A) $4,000,000,000 and (B) if a Borrowing Base is in effect under the Revolving Credit Agreement, the Borrowing Base in effect at such time and (2) such Indebtedness shall constitute “Revolver Obligations” under the Collateral Trust Agreement or shall otherwise constitute Permitted Pari Passu Secured Indebtedness (and may have priority to the Obligations in the payment of Foreclosure Proceeds as provided in the Collateral Trust Agreement or, in a substantially similar manner, in any Pari Passu Intercreditor Agreement);
(s) Indebtedness under Hedge Agreements permitted by Section 9.10;
(t) Indebtedness secured by Liens on (i) real property that is not Oil and Gas Property and that is not material to the operation of any Mortgaged Property and (ii) fixtures and personal property related to the real property in the foregoing clause (i) and that is also not material to the operation of any Mortgaged Property;
(u) unsecured Indebtedness and Junior Lien Debt of the Credit Parties; provided that such Indebtedness incurred after the Initial Closing Date (i) has a stated maturity no earlier than 91 days after the Last Maturity Date in effect at time such Indebtedness is incurred, (ii) has a Weighted Average Life to Maturity no shorter than 91 days after the longest Weighted Average Life to Maturity of any Class of Loans outstanding at the time such Indebtedness is incurred and (iii) in the case of each issuance Junior Lien Debt, (A) such Indebtedness shall be secured by Liens on all or a portion of the Collateral on a junior priority basis with the Liens on the Collateral securing the Obligations and shall not be secured by any assets of the Borrower or any Restricted Subsidiary other than the Collateral, (B) such Indebtedness shall not be guaranteed by any Subsidiaries other than the Guarantors and (C) the holders of such Indebtedness, (i) no Default or Event the administrative agent, collateral agent, trustee and/or any similar representative acting on behalf of Default such holders, shall have occurred become party to the Intercreditor Agreement (or a substantially similar intercreditor agreement reasonably satisfactory to the Borrower and be continuing or would be caused by the issuance of Term Agent) providing that the Liens on the Collateral securing such Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be rank junior in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect priority to the issuance of any such IndebtednessLiens on the Collateral securing the Obligations;
(v) Indebtedness in an aggregate principal amount not to exceed $75,000,000; and
(jw) unsecured Subordinated Indebtedness; provided that all premiums (if any), interest (including post-petition interest), fees, expenses, charges, and additional or contingent interest on obligations described in the case of each issuance of such Subordinated Indebtedness, clauses (ia) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and through (iiv) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Subordinated Indebtedness; provided, that no agreement or instrument with respect to Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower to make any payment to the Borrower or any Guarantor (in the form of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrower to pay the Obligationsabove.
Appears in 1 contract
Limitations on Indebtedness. Create(a) The Borrower will not, incurand will not permit its Subsidiaries to, assume and the Company will not, and will not permit its Subsidiaries to, create, issue, assume, guarantee or suffer to exist otherwise incur or in any Indebtedness manner be or become liable in respect of any Indebtedness, except:
(i) Indebtedness evidenced by the Notes;
(ii) unsecured Indebtedness incurred by the Company or any Domestic Subsidiary of the Company other than the Borrower (or any of the Borrower’s Subsidiaries) so long as no principal of such Indebtedness is scheduled to mature prior to the stated maturity of the Notes;
(iii) (a) secured or unsecured purchase money Indebtedness (including Capital Leases) (such Indebtedness being referred to herein as “Permitted Purchase Money Indebtedness”) incurred by the Obligations Company or any Domestic Subsidiary of the Company other than the Borrower (excluding Specified Hedge Obligations or any of the Borrower’s Subsidiaries) and (b) secured Indebtedness (such Indebtedness being referred to herein as “Permitted Receivables/Inventory Indebtedness”) incurred by the Company or any Domestic Subsidiary of the Company other than the Borrower (or any of the Borrower’s direct Subsidiaries) secured by Accounts and Inventory, if all such Permitted Purchase Money Indebtedness and Permitted Receivables/Inventory Indebtedness does not exceed, in the aggregate at any time outstanding, the greater of (1) $5,000,000 or (2) 8% of Consolidated Net Tangible Assets as determined at such time using the consolidated balance sheet of the Company and its Subsidiaries for the most recently completed fiscal quarter of the Company;
(iv) secured Indebtedness (hereinafter referred to as the “Permitted Other Secured Indebtedness”) created, issued, assumed, guaranteed or otherwise incurred by the Company or any Domestic Subsidiary of the Company other than the Borrower (or any of the Borrower’s Subsidiaries) so long as no principal of such Indebtedness is scheduled to mature prior to the stated maturity of the Notes; provided that at the time of creation, issuance, assumption, guarantee or incurrence thereof and after giving effect thereto and to the application of the proceeds thereof, the ratio of (i) Consolidated Secured Indebtedness at such time to (ii) Consolidated EBITDA as measured for the then trailing six most recently completed fiscal quarters of the Company on an annualized basis or the four most recently completed fiscal quarters of the Company if the date of determination is after the third anniversary of the Closing, shall not be in excess of 3.0 to 1.0;
(v) Indebtedness (hereinafter referred to as the “Permitted Acquisition Indebtedness”) created, issued, assumed, guaranteed or otherwise incurred by the Company or any Subsidiary of the Company other than the Borrower (or any of the Borrower’s Subsidiaries) used to finance (or assumed in connection with) the acquisition of a pharmaceutical or biotechnology product (including by way of the acquisition of stock or other similar ownership interests of the Person owning the target product); provided that at the time of creation, issuance, assumption, guarantee or incurrence thereof and after giving effect thereto and to the application of the proceeds thereof, the aggregate outstanding principal amount of such Indebtedness permitted pursuant by this clause (v) shall not exceed three times the lower of:
(1) the annualized EBITDA of the Person or product being acquired as measured for the then most recent 12 months ended; or
(2) the lowest projected annualized EBITDA for the Person or product being acquired, as the case may be, for any of the three years following the acquisition as determined by the Company in good faith on a pro forma basis and presented to Section 10.1(b));the Company’s board of directors in connection with the approval of such acquisition; and
(vi) Indebtedness represented by currency swaps or letters of credit entered into or issued, as the case may be, in the ordinary course of business of a Credit Party.
(b) The renewal, extension, increase or refunding of any Indebtedness originally permitted to be issued, incurred or outstanding pursuant to Section 10.1(a) shall constitute the issuance of additional Indebtedness which is, in connection with a Hedging Agreement which is entered into for interest rateturn, foreign currency, commodity or other business purposes and not for speculative purposes, with a counterparty reasonably satisfactory subject to the Administrative Agent; provided, that any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to limitations of the Administrative Agent;applicable provisions of this Section 10.1.
(c) Any Person that becomes a Subsidiary after the date hereof shall for all purposes of this Section 10.1 be deemed to have created, assumed or incurred at the time it becomes a Subsidiary all Indebtedness of such Person existing on immediately after it becomes a Subsidiary which Indebtedness, in turn, shall be subject to the Closing Date and not otherwise permitted under limitations of this SectionSection 10.1 including, as for the avoidance of doubt, any exceptions set forth on Schedule 6.1(t), and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;herein.
(d) Indebtedness Each Credit Party, the Collateral Agent and each Purchaser acknowledges and agrees that, notwithstanding the incurrence or assumption of any of the Borrower and its Subsidiaries Indebtedness permitted to be incurred in connection with Capital Leases in an aggregate amount, together with the aggregate amount of all purchase money Indebtedness of the Borrower and its Subsidiaries incurred or assumed pursuant to subsection (e) belowSection 10.1(a), not to exceed $20,000,000 on any date of determination;
(e) purchase money Indebtedness of the Borrower and its Subsidiaries with respect Liens granted to the purchase of Equipment in an aggregate amount, together with the aggregate amount of all Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (d) above, not to exceed $20,000,000 on any date of determination;
(f) Guaranty Obligations in favor of the Administrative Collateral Agent for the benefit of the Administrative Agent holders of Notes as collateral security for the payment of the Obligations (including, without limitation, the Liens on the Collateral provided for in Section 3 hereof) shall remain in place as valid and enforceable Liens; provided, however, that the Purchasers and the other Secured Parties;
(g) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a) through (e) of this Section; provided that neither the Borrower nor any Guarantor shall be permitted to incur Guaranty Obligations under this subsection (g) with respect to Indebtedness of any Subsidiary that is not a Guarantor ;
(h) Indebtedness owed by (i) any Guarantor to the BorrowerCollateral Agent hereby agree that, (ii) the Borrower to any Guarantor, (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor to the Borrower or any Guarantor in an amount not to exceed $500,000, or (vi) the Borrower or any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,000;
(i) Indebtedness incurred pursuant to the issuance of Qualified Senior Unsecured Notes; provided that in the case of each issuance the incurrence or assumption of such any Permitted Purchase Money Indebtedness, (i) no Default any Permitted Receivables/Inventory Indebtedness or Event of Default shall have occurred and be continuing or would be caused any Permitted Acquisition Indebtedness, if requested by the issuance of such Indebtedness and (ii) Company, the Administrative Collateral Agent shall have received satisfactory written evidence agree, in a writing that is in form and substance reasonably acceptable thereto, with the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any applicable creditor or creditors holding such Permitted Purchase Money Indebtedness; and
(j) unsecured Subordinated , such Permitted Receivables/Inventory Indebtedness or such Permitted Acquisition Indebtedness; provided that in , as the case may be, to subordinate any Liens which the Collateral Agent has or holds on the assets being acquired or financed in favor of each issuance of such Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Subordinated Indebtedness; provided, that no agreement or instrument with respect to Indebtedness Liens expressly permitted to be incurred by this Section shall restrictunder Sections 10.3 (a)(i), limit or otherwise encumber (by covenant or otherwise10.3(a)(ii) the ability of any Subsidiary of the Borrower to make any payment to the Borrower or any Guarantor (and 10.3(c), respectively, in the form of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrower to pay the Obligationsconnection with such acquisition.
Appears in 1 contract
Samples: Senior Secured Note and Warrant Purchase Agreement (Jazz Pharmaceuticals Inc)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations (excluding Specified Hedge Hedging Obligations permitted pursuant to Section 10.1(b));
(b) Indebtedness incurred in connection with a Hedging Agreement which is entered into for interest rate, foreign currency, commodity or other business purposes and not for speculative purposes, with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided, provided that any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Closing Date and not otherwise permitted under this Section, as set forth listed on Schedule 6.1(t)10.1, and the renewal, refinancing, extension and replacement (but not the increase any Refinancing Indebtedness in the aggregate principal amount) respect thereof;
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Capital Leases in an aggregate amount, together with the aggregate amount of all purchase money Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (e) below, not to exceed $20,000,000 on any date of determinationFinance Leases;
(e) purchase money Indebtedness of the Borrower and its Subsidiaries with Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the purchase extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of Equipment such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount, together with the aggregate amount of all Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (d) above, not to exceed $20,000,000 on 100,000,000 at any date of determinationtime outstanding;
(fg) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Parties;
(gh) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a) through (e) of this Section; provided that neither the Borrower nor any Guarantor guarantee of Refinancing Indebtedness shall only be permitted to incur Guaranty Obligations under this subsection (g) with respect to Indebtedness if it meets the requirements of any Subsidiary that is not a Guarantor ;
(h) Indebtedness owed by (i) any Guarantor to the Borrower, (ii) the Borrower to any Guarantor, (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor to the Borrower or any Guarantor in an amount not to exceed $500,000, or (vi) the Borrower or any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,000definition of Refinancing Indebtedness;
(i) Indebtedness incurred owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) unsecured Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the issuance of Qualified Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof;
(l) additional unsecured Indebtedness of the Borrower or its Restricted Subsidiaries; provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the case time of each issuance the incurrence of such Indebtedness, (iii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall have occurred and exist or be continuing or would be caused by and (iv) the issuance of documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (iib), respectively, of Section 7.1 (it being understood that this Section 10.1(m) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement is a limitation on such Indebtedness on a pro forma prospective basis after giving effect to the issuance of any such Indebtedness; and
(j) unsecured Subordinated Indebtedness; provided only and that in the case of each issuance of such Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by occur under this Section 10.1(m) retroactively); provided that (i) the issuance amount of such Subordinated secured Indebtedness and that is recourse to any Credit Party shall not exceed $250,000,000 minus the principal amount of term loans outstanding under the Existing TLB Credit Agreement, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness (which date, with respect to the term loans outstanding under the Existing TLB Credit Agreement, was April 17, 2023), (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $50,000,000 (other than with respect to the term loans issued pursuant to the Existing TLB Credit Agreement or any Refinancing Indebtedness in respect thereof) and the Borrower shall provide notice to the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect thereof pursuant to the issuance of any such Subordinated Indebtedness; provided, that no agreement or instrument with respect to Section 7.4(h);
(n) Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower to make any payment to the Borrower or any Guarantor (of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the form ordinary course of dividends, intercompany advances or otherwise) for business; provided that the purpose underlying obligation to perform is that of enabling the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to pay be acquired hereunder;
(p) Indebtedness of the ObligationsBorrower or any Restricted Subsidiary 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 that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassified.
Appears in 1 contract
Samples: Credit Agreement (CoreCivic, Inc.)
Limitations on Indebtedness. Create(a) The Borrower will not, incurand will not permit its Subsidiaries to, assume and the Company will not, and will not permit its Subsidiaries to, create, issue, assume, guarantee or suffer to exist otherwise incur or in any Indebtedness manner be or become liable in respect of any Indebtedness, except:
(i) Indebtedness evidenced by the Notes;
(ii) unsecured Indebtedness incurred by the Company or any Domestic Subsidiary of the Company other than the Borrower (or any of the Borrower’s Subsidiaries) so long as no principal of such Indebtedness is scheduled to mature prior to the stated maturity of the Notes;
(iii) (a) secured or unsecured purchase money Indebtedness (including Capital Leases) (such Indebtedness being referred to herein as “Permitted Purchase Money Indebtedness”) incurred by the Obligations Company or any Domestic Subsidiary of the Company other than the Borrower (excluding Specified Hedge Obligations permitted or any of the Borrower’s Subsidiaries) and (b) secured Indebtedness (such Indebtedness being referred to herein as “Permitted Receivables/Inventory Indebtedness”) incurred by the Company or any Domestic Subsidiary of the Company other than the Borrower (or any of the Borrower’s direct Subsidiaries) secured by Accounts and Inventory, if all such Permitted Purchase Money Indebtedness and Permitted Receivables/Inventory Indebtedness does not exceed, in the aggregate at any time outstanding, the lesser of (1) $15,000,000 and (2) 75% of Inventories and Receivables, as determined at such time using the consolidated balance sheet of the Company and its consolidated Subsidiaries for the most recently completed fiscal quarter of the Company;
(iv) secured Indebtedness (hereinafter referred to as the “Permitted Other Secured Indebtedness”) created, issued, assumed, guaranteed or otherwise incurred by the Company or any Domestic Subsidiary of the Company other than the Borrower (or any of the Borrower’s Subsidiaries) so long as no principal of [ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Section 10.1(bRule 24B-2 of the Securities Exchange Act of 1934, as amended. such Indebtedness is scheduled to mature prior to the stated maturity of the Notes; provided that at the time of creation, issuance, assumption, guarantee or incurrence thereof and after giving effect thereto and to the application of the proceeds thereof, the ratio of (i) Consolidated Secured Indebtedness at such time to (ii) Consolidated EBITDA, as measured for the then trailing four most recently completed fiscal quarters of the Company, shall not be in excess of 3.0 to 1.0;
(v) Indebtedness (hereinafter referred to as the “Permitted Acquisition Indebtedness”) created, issued, assumed, guaranteed or otherwise incurred by the Company or any Subsidiary of the Company other than the Borrower (or any of the Borrower’s Subsidiaries) used to finance (or assumed in connection with) the acquisition of a pharmaceutical or biotechnology product (including by way of the acquisition of stock or other similar ownership interests of the Person owning the target product)); provided that at the time of creation, issuance, assumption, guarantee or incurrence thereof and after giving effect thereto and to the application of the proceeds thereof, the aggregate outstanding principal amount of such Indebtedness permitted by this clause (v) shall not exceed three times the lower of:
a. the annualized EBITDA of the Person or product being acquired as measured for the then most recent 12 months ended; and
b. the lowest projected annualized EBITDA for the Person or product being acquired, as the case may be, for any of the three years following the acquisition as determined by the Company in good faith on a pro forma basis and presented to the Company’s board of directors in connection with the approval of such acquisition;
(vi) Indebtedness represented by currency swaps or letters of credit entered into or issued, as the case may be, in the ordinary course of business of a Credit Party; and
(vii) Any amounts owing under the Settlement Agreements.
(b) The renewal, extension, increase or refunding of any Indebtedness originally permitted to be issued, incurred or outstanding pursuant to Section 10.1(a) shall constitute the issuance of additional Indebtedness which is, in connection with a Hedging Agreement which is entered into for interest rateturn, foreign currency, commodity or other business purposes and not for speculative purposes, with a counterparty reasonably satisfactory subject to the Administrative Agent; provided, that any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to limitations of the Administrative Agent;applicable provisions of this Section 10.1.
(c) Any Person that becomes a Subsidiary after the date hereof shall for all purposes of this Section 10.1 be deemed to have created, assumed or incurred at the time it becomes a Subsidiary all Indebtedness of such Person existing on immediately after it becomes a Subsidiary which Indebtedness, in turn, shall be subject to the Closing Date limitations of this Section 10.1 including, for the avoidance of doubt, any exceptions set forth herein. [ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted and not otherwise permitted under this Sectionfiled separately with the Securities and Exchange Commission pursuant to Rule 24B-2 of the Securities Exchange Act of 1934, as set forth on Schedule 6.1(t), and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;amended.
(d) Indebtedness Each Credit Party, the Collateral Agent and each Purchaser acknowledges and agrees that, notwithstanding the incurrence or assumption of any of the Borrower and its Subsidiaries Indebtedness permitted to be incurred in connection with Capital Leases in an aggregate amount, together with the aggregate amount of all purchase money Indebtedness of the Borrower and its Subsidiaries incurred or assumed pursuant to subsection (e) belowSection 10.1(a), not to exceed $20,000,000 on any date of determination;
(e) purchase money Indebtedness of the Borrower and its Subsidiaries with respect Liens granted to the purchase of Equipment in an aggregate amount, together with the aggregate amount of all Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (d) above, not to exceed $20,000,000 on any date of determination;
(f) Guaranty Obligations in favor of the Administrative Collateral Agent for the benefit of the Administrative Agent holders of Notes as collateral security for the payment of the Obligations (including, without limitation, the Liens on the Collateral provided for in Section 3 hereof) shall remain in place as valid and enforceable Liens; provided, however, that the Purchasers and the other Secured Parties;
(g) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a) through (e) of this Section; provided that neither the Borrower nor any Guarantor shall be permitted to incur Guaranty Obligations under this subsection (g) with respect to Indebtedness of any Subsidiary that is not a Guarantor ;
(h) Indebtedness owed by (i) any Guarantor to the BorrowerCollateral Agent hereby agree that, (ii) the Borrower to any Guarantor, (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor to the Borrower or any Guarantor in an amount not to exceed $500,000, or (vi) the Borrower or any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,000;
(i) Indebtedness incurred pursuant to the issuance of Qualified Senior Unsecured Notes; provided that in the case of each issuance the incurrence or assumption of such any Permitted Purchase Money Indebtedness, (i) no Default any Permitted Receivables/Inventory Indebtedness or Event of Default shall have occurred and be continuing or would be caused any Permitted Acquisition Indebtedness, if requested by the issuance of such Indebtedness and (ii) Company, the Administrative Collateral Agent shall have received satisfactory written evidence agree, in a writing that is in form and substance reasonably acceptable thereto, with the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any applicable creditor or creditors holding such Permitted Purchase Money Indebtedness; and
(j) unsecured Subordinated , such Permitted Receivables/Inventory Indebtedness or such Permitted Acquisition Indebtedness; provided that in , as the case may be, to subordinate any Liens which the Collateral Agent has or holds on the assets being acquired or financed in favor of each issuance of such Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Subordinated Indebtedness; provided, that no agreement or instrument with respect to Indebtedness Liens expressly permitted to be incurred by this Section shall restrictunder Sections 10.3(a)(i), limit or otherwise encumber (by covenant or otherwise10.3(a)(ii) the ability of any Subsidiary of the Borrower to make any payment to the Borrower or any Guarantor (and 10.3(c), respectively, in the form of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrower to pay the Obligationsconnection with such acquisition.
Appears in 1 contract
Samples: Senior Secured Note and Warrant Purchase Agreement (Jazz Pharmaceuticals Inc)
Limitations on Indebtedness. CreateThe Company will not, incurand will not permit any of its Restricted Subsidiaries to, assume or suffer to exist incur any Indebtedness, except for the following Indebtedness except:(Permitted Indebtedness):
(a) Indebtedness outstanding on the Obligations (excluding Specified Hedge Obligations permitted pursuant to Section 10.1(b))Issuance Date and identified in Schedule A attached hereto;
(b) Indebtedness incurred in connection with a Hedging Agreement which is entered into for interest rate, foreign currency, commodity or other business purposes and not for speculative purposes, with a counterparty reasonably satisfactory Incurred pursuant to the Administrative Agent; provided, that Restructuring (including the Notes) other than any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory Notes issued pursuant to the Administrative AgentCash Offer;
(c) Indebtedness existing on the Closing Date and not otherwise permitted under this Section, as set forth on Schedule 6.1(t), and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereofPermitted Refinancing Indebtedness;
(d) Indebtedness of the Borrower and its Subsidiaries incurred in connection with Capital Leases in an aggregate amount, together with the aggregate amount of all purchase money Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (e) below, not to exceed $20,000,000 on any date of determinationSubordinated Indebtedness;
(e) purchase money Indebtedness Incurred in any year for purposes of the Borrower and its Subsidiaries with respect to the purchase of Equipment financing Permitted Capital Expenditures or Regulatory Capital Expenditures in an aggregate amount, together with the aggregate principal amount of all Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (d) above, not to exceed $20,000,000 on any date the amount of determinationPermitted Capital Expenditures that the Company is permitted to make under this Indenture during such year;
(f) Guaranty Obligations Indebtedness in favor respect of the Administrative Agent for the benefit of the Administrative Agent and the other Secured PartiesHedging Contracts;
(g) Guaranty Obligations Indebtedness with respect to Indebtedness permitted pursuant to subsections (a) through (e) letters of this Section; provided that neither credit, bankers’ acceptances and similar obligations issued in the Borrower nor any Guarantor shall be permitted to incur Guaranty Obligations under this subsection (g) with respect to Indebtedness ordinary course of any Subsidiary that is business and not a Guarantor supporting Indebtedness, including performance bonds and letters of credit supporting performance bonds;
(h) Indebtedness of the Company or any of its Restricted Subsidiaries owed by (i) any Guarantor to the Borrower, (ii) the Borrower Company or any of its Restricted Subsidiaries so long as such Indebtedness continues to any Guarantor, (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor be owed to the Borrower Company or any Guarantor a Restricted Subsidiary and which, if the obligor is the Company and such Indebtedness is owed to such Restricted Subsidiary, is subordinated in an amount not right of payment and priority to exceed $500,000the Notes, or (vi) the Borrower or any Guarantor pursuant to any Subsidiary that is not a Guarantor in an amount not to exceed $500,000;Subordination Agreement; and
(i) Indebtedness incurred pursuant Incurred for general corporate purposes in an aggregate principal amount not to the issuance of Qualified Senior Unsecured Notes; provided that exceed U.S. $50 million (or its equivalent in the case of each issuance of such Indebtedness, (iother currencies) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of at any such Indebtedness; and
(j) unsecured Subordinated Indebtedness; provided that in the case of each issuance of such Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Subordinated Indebtedness; provided, that no agreement or instrument with respect to Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower to make any payment to the Borrower or any Guarantor (in the form of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrower to pay the Obligationstime outstanding.
Appears in 1 contract
Samples: Indenture (Edenor)
Limitations on Indebtedness. CreateThe District covenants and agrees that it will not issue any Additional Bonds or incur any other Parity Obligations, incurother than the 2011 Bonds if, assume or suffer after giving effect to exist any all other Indebtedness except:incurred by the District, such Indebtedness could not be incurred pursuant to this Section 704. Any Additional Parity Obligations and Junior Obligations may be incurred only in the manner and pursuant to the terms set forth in this Section 704; provided, however, that VRA Senior Obligations may become VRA Subordinate Obligations without limitation.
(a) Long-Term Indebtedness may be incurred if prior to incurrence of the Long-Term Indebtedness there is delivered to the Trustee:
(i) an Officer’s Certificate of a District Representative certifying that the Long-Term Debt Service Coverage Ratio for the most recent period of twelve (12) full consecutive calendar months preceding the date of delivery of the certificate of the District Representative for which there are Financial Statements available, adjusted for revenues and expenses resulting from anticipated new customers and any planned program of rate increases that has been approved by the Commission, taking all Long-Term Indebtedness incurred after such period and the proposed Long-Term Indebtedness into account as if such Long-Term Indebtedness had been incurred at the beginning of such period, is not less than one hundred twenty percent (120%); or
(ii) an Officer’s Certificate of a District Representative certifying that the District is expected to comply with the Rate Covenant set forth in Section 705 of this Trust Agreement for the five Fiscal Years following the date of issuance of the proposed Long-Term Indebtedness. Such certificate shall be accompanied by a statement of the relevant assumptions upon which such pro forma Financial Statements for the District are based including, but not limited to, adjustments to revenues and expenses resulting from anticipated new customers and any planned program of rate increases that has been approved by the Commission; or
(iii) if the Long-Term Indebtedness is authorized for any purpose other than the refunding of the outstanding Senior Obligations or Outstanding Parity Obligations, an Officer’s Certificate of a District Representative to the effect, and to the extent applicable, that in his or her opinion (excluding Specified Hedge Obligations permitted pursuant a) the improvements or property to which the proceeds from the issuance of the Long-Term Indebtedness are to be applied will be a part of the Wastewater System, (b) the proceeds of the Long-Term Indebtedness and other specified sources will be sufficient to pay the estimated cost of such improvements or property, (c) the period of time which will be required to complete such improvements or acquire such property, and (d)(1) the proceeds of the Long-Term Indebtedness are necessary to complete the project to be financed thereby, (2) the failure to make such improvements or acquire or construct such property will result in an interruption or reduction of Net Revenues, or (3) during the first two Fiscal Years following the completion of the improvements or the acquisition of the property, the projected Net Revenues will satisfy the Rate Covenant in Section 10.1(b));705 hereof. In providing this certificate, the District Representative may take into consideration future Wastewater System rate increases, provided that such rate increases have been duly approved by the Commission and any other person and entity required to give approval for the rate increase to become effective. In addition, he or she may take into consideration additional future revenues of the Wastewater System to be derived under then existing contractual agreements entered into by the District and from reasonable estimates of growth in the customer base of the District; or
(iv) an Officer’s Certificate of a District Representative certifying compliance with the Rate Covenant set forth in Section 705 of this Trust Agreement for the most recent period of twelve (12) full consecutive calendar months for which there are Financial Statements available preceding the date of delivery of the certificate.
(b) Long-Term Indebtedness may be incurred in connection with for the purpose of refunding Outstanding Long-Term Indebtedness if either (i) a Hedging Agreement which is entered into for interest rate, foreign currency, commodity or other business purposes and not for speculative purposes, with a counterparty reasonably satisfactory certificate of an independent financial advisor to the Administrative Agent; providedeffect that, that any counterparty that is the Long-Term Indebtedness issued to refund outstanding Senior Obligations or Outstanding Parity Obligations will have, in the aggregate, a Lender lower Long-Term Debt Service Requirement than the Long-Term Debt Service Requirement on the Senior Obligations or Outstanding Parity Obligations to be refunded with the proceeds thereof, or (ii) an Affiliate thereof shall be deemed satisfactory Officer’s Certificate of a District Representative to the Administrative Agent;effect that during the first two complete Fiscal Years following the issuance of the refunding Long-Term Indebtedness, the projected Net Revenues will satisfy the Rate Covenant in Section 705 hereof. In providing the certificate described in this clause (b), the Officer’s Certificate may take into account the factors described in the last two sentences of subsection (a)(iii) of this Section. In addition, the Trustee shall receive an Opinion of Counsel stating that upon the incurrence of such proposed Long-Term Indebtedness and application of the proceeds thereof (on the Cross-over Date, in the case of Cross-over Refunding Indebtedness), the Outstanding Long-Term Indebtedness to be refunded thereby will no longer be Outstanding.
(c) Short-Term Indebtedness existing on may be incurred as a Parity Obligation subject to the Closing Date same tests that apply to the incurrence of Parity Obligations generally; provided, however, that notwithstanding such limitation, the District may incur as a Parity Obligation from time to time and not otherwise permitted under this Section, have outstanding at any one time Short-Term Indebtedness in an amount up to 10% of its Total Operating Revenues as set forth on Schedule 6.1(t), and the renewal, refinancing, extension and replacement (but not the increase reflected in the aggregate principal amount) thereof;Financial Statements of the District for the most recent period of twelve consecutive months for which Financial Statements are available and provided, further, that the District may incur Short-Term Indebtedness secured by a Credit Facility without limitation. Short-Term Indebtedness may be incurred as Junior Obligations without compliance with the tests that apply to the incurrence of Parity Subordinate Indebtedness.
(d) Indebtedness Additional VRA Subordinate Obligations may be incurred by the District subject to the delivery of an Officer’s Certificate of a District Representative demonstrating compliance with Sections 704(a) or (b) and 705(a) hereof, provided, however, anything in this Trust Agreement notwithstanding, the Borrower District may make such additional covenants in a supplemental resolution, financing agreement or other agreement authorizing and its Subsidiaries incurred in connection with Capital Leases in an aggregate amount, together with the aggregate amount securing a VRA Subordinate Obligations as may be required by VRA as a condition of all purchase money Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (e) below, not to exceed $20,000,000 on any date of determination;selling such VRA Subordinate Obligations.
(e) purchase money Indebtedness of the Borrower and its Subsidiaries with respect to the purchase of Equipment in an aggregate amount, together with the aggregate amount of all Indebtedness of the Borrower and its Subsidiaries Junior Obligations may be incurred pursuant to subsection (d) above, not to exceed $20,000,000 on any date of determination;without limitation.
(f) Guaranty For purposes of demonstrating compliance with the incurrence test set forth in subsection (a) of this Section 704, the District may (but is not required to) elect in the applicable Series Agreement to treat all or any Parity Obligations authorized in favor a Credit Facility (including, for example and without limitation, a self-liquidity arrangement provided by the District, a line of credit or a liquidity facility supporting a commercial paper program), but not immediately issued or incurred under such Credit Facility, as subject to such incurrence test as of a single date, notwithstanding that none, or less than all, of the Administrative Agent for the benefit authorized principal amount of the Administrative Agent and the other Secured Parties;such Parity Obligations shall have been issued or incurred as of such date.
(g) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a) through (e) Notwithstanding the foregoing provisions of this Section; provided that neither Section 704, nothing herein contained shall preclude the Borrower nor District from incurring any Guarantor shall be permitted to incur Guaranty Obligations obligation under this subsection (g) with respect to Indebtedness of any Subsidiary that is not a Guarantor ;
(h) Indebtedness owed by (i) any Guarantor to the Borrower, (ii) the Borrower to any Guarantor, (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor to the Borrower or any Guarantor in an amount not to exceed $500,000, or (vi) the Borrower or any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,000;
(i) Indebtedness incurred pursuant to the issuance of Qualified Senior Unsecured Notes; provided that in the case of each issuance of such Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Indebtedness; and
(j) unsecured Subordinated Indebtedness; provided that in the case of each issuance of such Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Subordinated Indebtedness; provided, that no agreement or instrument with respect to Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower to make any payment to the Borrower or any Guarantor (in the form of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrower to pay the ObligationsCredit Facility.
Appears in 1 contract
Samples: Trust Agreement
Limitations on Indebtedness. Create(a) The Obligors will not, incurand will not permit any of their respective Subsidiaries to, assume create, assume, guarantee or suffer to exist otherwise incur or in any Indebtedness manner be or become liable in respect of any Indebtedness, except:
(a1) Indebtedness evidenced by the Notes and a Subsidiary Guaranty;
(2) Indebtedness of the Obligors and of their respective Subsidiaries outstanding as of the Effective Date and described on SCHEDULE II hereto;
(3) Indebtedness issued and outstanding, including Contingent Obligations under letters of credit, under the Revolving Credit Agreement, as from time to time supplemented, amended, renewed or extended and including any replacement thereof; PROVIDED that such Indebtedness outstanding at any time for each Subsidiary shall not exceed the amounts set forth on SCHEDULE III or if less, the maximum amount as may be permitted under Exhibit G of the Revolving Credit Agreement as in effect from to time to time; PROVIDED, FURTHER, that any such supplement, amendment, renewal, extension or replacement does not (excluding Specified Hedge Obligations i) increase the amount of Indebtedness outstanding thereunder, (ii) increase the interest rate or rates payable pursuant thereto, (iii) include any business or financial covenants not included in the Revolving Credit Agreement on the Effective Date or (iv) make any amendment or modification that cannot be so amended or modified by Bank of America in accordance with the terms of Section 5.19 or (v) otherwise materially and adversely affect the business, property, assets, operations, condition (financial or otherwise) or prospects of the Obligors and their respective Subsidiaries taken as whole AND PROVIDED FURTHER that after giving effect to any such supplement, amendment, renewal, extension or replacement, any financial institution which becomes a party thereto shall have agreed in writing to be bound by the terms of the Intercreditor Agreement;
(4) Indebtedness of MMI and Xxxxxx evidenced by the Bank Guaranty and representing guaranties of obligations under or in connection with the Revolving Credit Agreement;
(5) Indebtedness of the Obligors and of their respective Subsidiaries secured by Liens permitted pursuant to Section 10.1(bby Sections 5.12(f), (g) and (h);
(b6) additional Indebtedness incurred in connection with a Hedging Agreement which is entered into for interest rate, foreign currency, commodity or other business purposes and not for speculative purposes, with a counterparty reasonably satisfactory to the Administrative Agent; provided, that any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Closing Date and not otherwise permitted under this Section, as set forth on Schedule 6.1(t), and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(d) Indebtedness of the Borrower and its Subsidiaries incurred in connection with Capital Leases in an aggregate amount, together with the aggregate principal amount of all purchase money Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (e) below, at any one time outstanding not to exceed $20,000,000 on any date of determination1,000,000;
(7) other Indebtedness of a Subsidiary to MMI or to any other Subsidiaries which shall not exceed, in each case at any one time outstanding $1,000,000 for MMI's fiscal year ending on or about December 31, 1998, $2,000,000 for Middleby's fiscal year ending on or about December 31, 1999 and $3,000,000 for MMI's fiscal year ending on or about December 31, 2000 and each fiscal year thereafter;
(8) liabilities created or arising as a result of Liens described in clauses (a) through (d) of Section 5.12 to the extent that such liabilities are classified upon a balance sheet of the Obligors and their Subsidiaries as liabilities of any such Person; PROVIDED that no such liability shall be created or arise in connection with the borrowing of money or in connection with the creation of Liens described in clauses (e) purchase money through (m) of Section 5.12;
(9) Indebtedness incurred by MMI in connection with the Acquisitions permitted under Section 7.3(b) of the Revolving Credit Agreement only to the extent that such Indebtedness is unsecured financing by a seller of product lines to MMI and the payment of principal amount of which is subordinated to the payment of the Notes;
(10) Indebtedness of MPC under an unsecured term loan; PROVIDED that the Borrower aggregate principal amount outstanding under such loan does not exceed $1,850,000; PROVIDED FURTHER, that such Indebtedness shall be repaid in full prior to June 18, 1998;
(11) Indebtedness of MMI and its Subsidiaries with respect to Xxxxxx evidenced by the purchase Bank Guaranty, and Indebtedness of Equipment in an aggregate amountMMI or any Subsidiary, together with representing overdrafts, or the guaranty thereof; PROVIDED THAT the aggregate amount of all Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (dthis Section 5.11(a)(11) above, together with all Indebtedness incurred under Section 5.11(a)(3) shall not to exceed at any one time outstanding $20,000,000 on any date of determination;20,000,000; and
(f12) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Parties;
(g) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a) through (e) of this Section; provided that neither the Borrower nor any Guarantor shall be permitted to incur Guaranty Obligations under this subsection (g) with respect to Indebtedness of any Subsidiary that is not a Guarantor ;
(h) MMI and Xxxxxx evidenced by the Bank Guaranty, and Indebtedness owed by (i) any Guarantor to the Borrower, (ii) the Borrower to any Guarantor, (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor to the Borrower of MMI or any Guarantor in an amount not to exceed $500,000Subsidiary, representing foreign exchange contracts, products or derivatives, or (vi) the Borrower or any Guarantor to any Subsidiary guaranty thereof; PROVIDED that is such contracts are entered into for hedging and not a Guarantor in an speculative purposes; PROVIDED FURTHER that the aggregate amount not to exceed $500,000;
(i) of all Indebtedness incurred pursuant to the issuance of Qualified Senior Unsecured Notes; provided that in the case of each issuance of such Indebtedness, (ithis Section 5.11(a)(12) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance together with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Indebtedness; and
(j) unsecured Subordinated Indebtedness; provided that in the case of each issuance of such Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Subordinated Indebtedness; provided, that no agreement or instrument with respect to Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower to make any payment to the Borrower or any Guarantor (in the form of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrower to pay the Obligations.under
Appears in 1 contract
Samples: Note Agreement (Middleby Corp)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations (excluding Specified Hedge Obligations permitted pursuant to Section 10.1(b)Hedging Obligations);
(b) Indebtedness incurred in connection with a Hedging Agreement which is entered into for interest rateAgreement, foreign currencyin each case, commodity or other incurred in the ordinary course of business purposes and not for speculative purposes, with a counterparty reasonably satisfactory to the Administrative Agent; provided, that any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Closing Date and not otherwise permitted under this SectionFourth Amendment Effective Date, as set forth on Schedule 6.1(t)11.1, and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(d) Indebtedness of the US Borrower and its Subsidiaries incurred in connection with Capital Leases in an aggregate amountamount not to exceed (i) during the period prior to the Fourth Amendment Effective Date, together with $10,000,000 on any date of determination and (ii) on or after the aggregate amount Fourth Amendment Effective Date, the greater of all purchase money Indebtedness (A) three percent (3%) of Consolidated Total Assets (determined at the time of incurrence thereof based on the financial data for the most recently ended Fiscal Year for which audited financial statements of the US Borrower and its Subsidiaries incurred pursuant to subsection are available), and (eB) below, not to exceed $20,000,000 on any date of determination20,000,000;
(e) purchase money Indebtedness of the US Borrower and its Subsidiaries with respect to the purchase of Equipment in an aggregate amountamount not to exceed (i) during the period prior to the Fourth Amendment Effective Date, together with $10,000,000 on any date of determination and (ii) on or after the aggregate amount Fourth Amendment Effective Date, the greater of all Indebtedness (A) three percent (3%) of Consolidated Total Assets (determined at the time of incurrence thereof based on the financial data for the most recently ended Fiscal Year for which audited financial statements of the US Borrower and its Subsidiaries incurred pursuant to subsection are available), and (dB) above, not to exceed $20,000,000 on any date of determination20,000,000;
(f) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured PartiesLenders (and their Affiliates, as applicable);
(g) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (ab) through (e) or subsections (p) and (q) of this Section; provided that neither the Borrower nor any Guarantor shall be permitted to incur Guaranty Obligations under this subsection (g) with respect to Indebtedness of any Subsidiary that is not a Guarantor ;
(h) Indebtedness owed by (i) by the US Borrower to any Guarantor to the BorrowerSubsidiary Guarantor, (ii) by any Subsidiary Guarantor to the Borrower to any GuarantorUS Borrower, (iii) by any Subsidiary Guarantor to any other Subsidiary Guarantor, or (iv) by any Subsidiary that is not a Subsidiary Guarantor to any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary that is not a Guarantor to the Borrower or any Guarantor in an amount not to exceed $500,000, or (vi) the Borrower or any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,000;
(i) Indebtedness incurred pursuant to the issuance of Qualified Senior Unsecured Notes; provided that in the case of each issuance of such Indebtedness, (i) so long as no Default or Event of Default shall have has occurred and be is continuing or would be caused result therefrom, Indebtedness owed by the issuance of such US Borrower and any Subsidiary Guarantor to any Foreign Subsidiary or Indebtedness owed by any Foreign Subsidiary to the US Borrower and (ii) any Subsidiary Guarantor which, together with the Administrative Agent shall have received satisfactory written evidence that the Borrower would be Permitted Acquisition Consideration payable in compliance connection with all covenants contained in this Agreement on a pro forma basis after giving effect to Permitted Foreign Acquisitions and the issuance total amount of any such Indebtedness; andtransactions permitted under Sections 11.3(i) and 11.5(f), does not exceed $60,000,000 in the aggregate during the period from the Closing Date through and including the Maturity Date;
(j) unsecured Subordinated Indebtedness; provided that in the case of each issuance of such Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the US Borrower and its Subsidiaries would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Subordinated Indebtedness;
(k) additional Indebtedness of the US Borrower and the Subsidiary Guarantors not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed (i) during the period prior to the Fourth Amendment Effective Date, $10,000,000 and (ii) on or after the Fourth Amendment Effective Date, the greater of (A) three percent (3%) of Consolidated Total Assets (determined at the time of incurrence thereof based on the financial data for the most recently ended Fiscal Year for which audited financial statements of the US Borrower and its Subsidiaries are available), and (B) $20,000,000;
(l) so long as no Default or Event of Default has occurred and is continuing or would occur as a result therefrom, Indebtedness arising in connection with an Accounts Securitization;
(m) endorsements of negotiable instruments for deposit or collection in the ordinary course of business;
(n) unsecured Indebtedness in respect of performance bonds, worker’s compensation claims, surety or appeal bonds and payment obligations in connection with self insurance or similar obligations, in each case to the extent incurred in the ordinary course of business;
(o) Guaranty Obligations consisting of an unsecured limited guaranty of certain of the obligations of Northpark Corporate Center, L.L.C. pursuant to that certain $9,400,000 loan agreement by and between Northpark Corporate Center, L.L.C. and Xxxxx Fargo; provided that such Guaranty Obligations shall be (i) in an aggregate principal amount not to exceed $9,400,000 and (ii) evidenced by a guaranty agreement in form and substance satisfactory to the Administrative Agent;
(p) Indebtedness in connection with the February 2007 Notes; and
(q) Indebtedness consisting of Qualified Unsecured Issuances and any refinancings, refundings, renewals or extensions thereof; provided that (i) such refinancing shall be on terms and conditions, satisfactory to the Administrative Agent, that are (A) consistent with the then-current market terms and conditions of such type of unsecured debt (as reasonably determined in good faith by the board of directors of the US Borrower) and (B) no less favorable to the Lenders than the terms of the Qualified Unsecured Issuances, (ii) no Default or Event of Default shall have occurred and be continuing or would be caused by such refinancing, refunding, renewal or extension thereof, (iii) the principal amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing, (iv) the final maturity date and weighted average life of such refinancing, refunding, renewal or extension shall not be prior to or shorter than that applicable to the Indebtedness prior to such refinancing, refunding, renewal or extension and (v) such refinancing, refunding, renewal or extension shall (A) be unsecured, (B) not rank higher than pari passu with the Obligations and (C) not be guaranteed by any Person that has not also guaranteed all of the Obligations. provided, that no agreement or instrument with respect to Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the any Borrower to make any payment to the such Borrower or any Guarantor of its Subsidiaries (in the form of dividends, intercompany advances or otherwise) for the purpose of enabling the such Borrower to pay the Obligations.
Appears in 1 contract
Samples: Credit Agreement (Pool Corp)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations (excluding Specified Hedge Hedging Obligations permitted pursuant to Section 10.1(b));
(b) Indebtedness incurred in connection with a Hedging Agreement which is entered into for interest rate, foreign currency, commodity or other business purposes and not for speculative purposes, with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided, provided that any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Closing Date and not otherwise permitted under this Section, as set forth listed on Schedule 6.1(t)10.1, and the renewal, refinancing, extension and replacement (but not the increase any Refinancing Indebtedness in the aggregate principal amount) respect thereof;
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Capital Leases in an aggregate amount, together with the aggregate amount of all purchase money Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (e) below, not to exceed $20,000,000 on any date of determinationFinance Leases;
(e) purchase money Indebtedness of the Borrower and its Subsidiaries with Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the purchase extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of Equipment such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount, together with the aggregate amount of all Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (d) above, not to exceed $20,000,000 on 100,000,000 at any date of determinationtime outstanding;
(fg) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Parties;
(gh) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a) through (e) of this Section; provided that neither the Borrower nor any Guarantor guarantee of Refinancing Indebtedness shall only be permitted to incur Guaranty Obligations under this subsection (g) with respect to Indebtedness if it meets the requirements of any Subsidiary that is not a Guarantor ;
(h) Indebtedness owed by (i) any Guarantor to the Borrower, (ii) the Borrower to any Guarantor, (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor to the Borrower or any Guarantor in an amount not to exceed $500,000, or (vi) the Borrower or any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,000definition of Refinancing Indebtedness;
(i) Indebtedness incurred owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the issuance of Qualified Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the case time of each issuance the incurrence of such Indebtedness, (iii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall have occurred and exist or be continuing or would be caused by and (iv) the issuance of documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (iib), respectively, of Section 7.1 (it being understood that this Section 10.1(m) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement is a limitation on such Indebtedness on a pro forma prospective basis after giving effect to the issuance of any such Indebtedness; and
(j) unsecured Subordinated Indebtedness; provided only and that in the case of each issuance of such Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by occur under this Section 10.1(m) retroactively); provided that (i) the issuance amount of such Subordinated secured Indebtedness and that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect thereof pursuant to the issuance of any such Subordinated Indebtedness; provided, that no agreement or instrument with respect to Section 7.4(h);
(n) Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower to make any payment to the Borrower or any Guarantor (of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the form ordinary course of dividends, intercompany advances or otherwise) for business; provided that the purpose underlying obligation to perform is that of enabling the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to pay be acquired hereunder;
(p) Indebtedness of the ObligationsBorrower or any Restricted Subsidiary 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 that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassified.
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Samples: Credit Agreement (CoreCivic, Inc.)
