Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except: (a) (i) the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(c)) and (ii) the Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties; (b) (i) the Canadian Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(c)) and (ii) the Guaranty Obligations in favor of the Canadian Administrative Agent for the benefit of the Canadian Secured Parties; (c) Indebtedness incurred in connection with a Hedging Agreement (i) which is entered into for interest rate, foreign currency or other business purposes and not for speculative purposes and (ii) with a counterparty reasonably satisfactory to the Administrative Agent and the Canadian Administrative Agent; provided that any counterparty that is a Lender, a Canadian Lender or any Affiliate thereof shall be deemed satisfactory to the Administrative Agent and the Canadian Administrative Agent; (d) Indebtedness existing on the Closing Date and not otherwise permitted under this Section and, to the extent that the outstanding principal amount of such Indebtedness is in excess of $25,000,000, listed on Schedule 10.1 (including any Indebtedness issued to refinance or to refund such Indebtedness or any Indebtedness which constitutes a renewal or extension of such Indebtedness); provided that (i) the principal amount of such Indebtedness may not be increased at the time of such refinancing, refunding, renewal or extension except (A) by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder and (B) by additional amounts, to the extent that the Consolidated Total Leverage Ratio, on a pro forma basis after giving effect to such increase, would be no greater than 5.50 to 1.00, (ii) no Default or Event of Default exists and is continuing or would be caused by the refinancing, refunding, renewal or extension thereof, (iii) the Administrative Agent and the Canadian Administrative Agent shall have received satisfactory written evidence that the Borrower and its Subsidiaries would be in compliance with all covenants in this Agreement and the Canadian Credit Agreement on a pro forma basis after giving effect to the refinancing, refunding, renewal or extension thereof, (iv) the weighted average life of such Indebtedness shall not be shorter than the weighted average life of the Indebtedness being refinanced, refunded, renewed or extended, (v) any terms of subordination set forth in the Indebtedness being refinanced, refunded, renewed or extended are not adversely affected in any material respect and (vi) none of the Existing Notes nor any Indebtedness incurred in accordance with this paragraph to refinance, refund, renew or extend the Existing Notes shall be guaranteed by the Borrower or any of its Subsidiaries (other than (A) those Existing Notes which are guaranteed by the Borrower as of the Closing Date and identified on Schedule 10.1 as being so guaranteed and (B) any Indebtedness issued to refinance any Existing Notes which, as of the Closing Date, (1) have an outstanding principal balance in excess of $50,000,000 and (2) mature or are subject to mandatory redemption prior to the Maturity Date); (e) Indebtedness incurred in connection with Capital Leases, including those Capital Leases existing on the Closing Date, and purchase money Indebtedness, including all purchase money Indebtedness existing on the Closing Date, in an aggregate amount not to exceed $50,000,000 on any date of determination; (f) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (c), (e), (h), (l) and (m) of this Section (provided that any Guaranty Obligations of Indebtedness incurred pursuant to subsection (h) or, to the extent applicable, subsection (m) of this Section shall be subordinated to the Obligations and the Canadian Obligations to the same extent as the Indebtedness that is being guaranteed); (g) (i) (A) Indebtedness owed by any Credit Party to any other Credit Party (provided that, if requested by the Administrative Agent, such Indebtedness shall be subordinated to the Obligations on terms and conditions reasonably satisfactory to the Administrative Agent) and (B) Indebtedness owed by any Canadian Credit Party to any other Canadian Credit Party (provided that, if requested by the Canadian Administrative Agent, such Indebtedness shall be subordinated to the Canadian Obligations on terms and conditions reasonably satisfactory to the Canadian Administrative Agent);
Appears in 2 contracts
Samples: Credit Agreement (AbitibiBowater Inc.), Credit Agreement (Bowater Inc)
Limitations on Indebtedness. CreateThe Borrower shall not, and shall not permit any of its Subsidiaries to create, incur, assume or suffer permit to exist any Indebtedness except:
(a) (i) the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(c)) and (ii) the Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured PartiesIndebtedness existing hereunder;
(b) (i) the Canadian Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(c)) and (ii) the Guaranty Obligations in favor Indebtedness of the Canadian Administrative Agent for the benefit of the Canadian Secured Parties;
(c) Indebtedness incurred in connection with a Hedging Agreement (i) which is entered into for interest rate, foreign currency or other business purposes and not for speculative purposes and (ii) with a counterparty reasonably satisfactory to the Administrative Agent and the Canadian Administrative Agent; provided that any counterparty that is a Lender, a Canadian Lender or any Affiliate thereof shall be deemed satisfactory to the Administrative Agent and the Canadian Administrative Agent;
(d) Indebtedness existing on the Closing Date and not otherwise permitted under this Section and, to the extent that the outstanding principal amount of such Indebtedness is in excess of $25,000,000, listed on Schedule 10.1 (including any Indebtedness issued to refinance or to refund such Indebtedness or any Indebtedness which constitutes a renewal or extension of such Indebtedness); provided that (i) the principal amount of such Indebtedness may not be increased at the time of such refinancing, refunding, renewal or extension except (A) by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder and (B) by additional amounts, to the extent that the Consolidated Total Leverage Ratio, on a pro forma basis after giving effect to such increase, would be no greater than 5.50 to 1.00, (ii) no Default or Event of Default exists and is continuing or would be caused by the refinancing, refunding, renewal or extension thereof, (iii) the Administrative Agent and the Canadian Administrative Agent shall have received satisfactory written evidence that the Borrower and its Subsidiaries would be in compliance with all covenants in this Agreement and the Canadian Credit Agreement on a pro forma basis after giving effect to the refinancing, refunding, renewal or extension thereof, (iv) the weighted average life of such Indebtedness shall not be shorter than the weighted average life of the Indebtedness being refinanced, refunded, renewed or extended, (v) any terms of subordination set forth in the Indebtedness being refinanced, refunded, renewed or extended are not adversely affected in any material respect and (vi) none of the Existing Notes nor any Indebtedness incurred in accordance with this paragraph to refinance, refund, renew or extend the Existing Notes shall be guaranteed by the Borrower or any of its Subsidiaries (other than (A) those Existing Notes which are guaranteed by the Borrower as of the Closing Date and identified on Schedule 10.1 as being so guaranteed and (B) any Indebtedness issued to refinance any Existing Notes which, as of the Closing Date, (1) have an outstanding principal balance in excess of $50,000,000 and (2) mature or are subject to mandatory redemption prior to the Maturity Date);
(e) Indebtedness incurred in connection with Capital Leases, including those Capital Leases existing on the Closing Date, and purchase money Indebtedness, including all purchase money Indebtedness existing on the Closing Date, in an aggregate amount not to exceed $50,000,000 on any date of determination;
(f) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (c), (e), (h), (l) and (m) of this Section (provided that any Guaranty Obligations of Indebtedness incurred pursuant to subsection (h) or, to the extent applicable, subsection (m) of this Section shall be is expressly subordinated to the Obligations and the Canadian Obligations pursuant to the same extent as the Indebtedness that is being guaranteed);
(g) (i) (A) Indebtedness owed by any Credit Party to any other Credit Party (provided that, if requested by the Administrative Agent, such Indebtedness shall be subordinated to the Obligations on terms and conditions reasonably satisfactory to the Administrative AgentAgent and the Required Lenders (the “Subordinated Debt”);
(c) Purchase money financing not to exceed in the aggregate outstanding at any time 3.5% of the Borrower’s consolidated Net Worth;
(d) Indebtedness that constitutes a renewal, refinancing or extension of any Indebtedness referred to in this Section 10.3; provided, that (i) no Lien existing at the time of such renewal reflecting an extension shall be extended to cover any property not already subject to such Lien and (Bii) the principal amount of any Indebtedness renewed, refinanced or extended shall not exceed the amount of such Indebtedness outstanding immediately prior to such renewal, refinancing or extension;
(e) Capital Lease Obligations not to exceed $500,000 in the aggregate outstanding at any time;
(f) Indebtedness owed owing by H.
X. Xxxxxxx Canada, Ltd. not to exceed one million Dollars (US $1,000,000) in the aggregate outstanding at any Canadian Credit Party time; and
(g) Indebtedness incurred by Borrower under a Hedge Agreement.
(h) Indebtedness with respect to any other Canadian Credit Party letters of credit (provided that, if requested by the Canadian Administrative Agent, such Indebtedness shall be subordinated not subject to the Canadian Obligations on terms and conditions reasonably satisfactory of this Agreement), issued by a Bank, such letters of credit not to the Canadian Administrative Agent);exceed $20,000,000 in amounts available to be drawn thereunder at any time.
Appears in 2 contracts
Samples: Credit Agreement (Tandy Brands Accessories Inc), Credit Agreement (Tandy Brands Accessories Inc)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) (i) the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(c)) and (ii) the Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(b) (i) the Canadian U.S. Obligations (excluding Hedging Obligations Agreements permitted pursuant to Section 10.1(c)) and (ii) the Guaranty Obligations in favor of the Canadian U.S. Administrative Agent for the benefit of the Canadian U.S. Secured Parties;
(c) Indebtedness incurred in connection with a Hedging Agreement (i) which is entered into for interest rate, foreign currency or other business purposes and not for speculative purposes and (ii) with a counterparty reasonably satisfactory to the Administrative Agent and the Canadian U.S. Administrative Agent; provided that any counterparty that is a Lender, a Canadian U.S. Lender or any Affiliate thereof shall be deemed satisfactory to the Administrative Agent and the Canadian U.S. Administrative Agent;
(d) Indebtedness existing on the Closing Date and not otherwise permitted under this Section and, to the extent that the outstanding principal amount of such Indebtedness is in excess of $25,000,000, listed on Schedule 10.1 (including any Indebtedness issued to refinance or to refund such Indebtedness or any Indebtedness which constitutes a renewal or extension of such Indebtedness); provided that (i) the principal amount of such Indebtedness may not be increased at the time of such refinancing, refunding, renewal or extension except (A) by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder and (B) by additional amounts, to the extent that the Consolidated Total Leverage Ratio, on a pro forma basis after giving effect to such increase, would be no greater than 5.50 to 1.00, (ii) no Default or Event of Default exists and is continuing or would be caused by the refinancing, refunding, renewal or extension thereof, (iii) the Administrative Agent and the Canadian U.S. Administrative Agent shall have received satisfactory written evidence that the U.S. Borrower and its Subsidiaries would be in compliance with all covenants in this Agreement and the Canadian U.S. Credit Agreement on a pro forma basis after giving effect to the refinancing, refunding, renewal or extension thereof, (iv) the weighted average life of such Indebtedness shall not be shorter than the weighted average life of the Indebtedness being refinanced, refunded, renewed or extended, (v) any terms of subordination set forth in the Indebtedness being refinanced, refunded, renewed or extended are not adversely affected in any material respect and (vi) none of the Existing Notes nor any Indebtedness incurred in accordance with this paragraph to refinance, refund, renew or extend the Existing Notes shall be guaranteed by the U.S. Borrower or any of its Subsidiaries (other than (A) those Existing Notes which are guaranteed by the U.S. Borrower as of the Closing Date and identified on Schedule 10.1 as being so guaranteed and (B) any Indebtedness issued to refinance any Existing Notes which, as of the Closing Date, (1) have an outstanding principal balance in excess of $50,000,000 and (2) mature or are subject to mandatory redemption prior to the U.S. Maturity Date);
(e) Indebtedness incurred in connection with Capital Leases, including those Capital Leases existing on the Closing Date, and purchase money Indebtedness, including all purchase money Indebtedness existing on the Closing Date, in an aggregate amount not to exceed $50,000,000 on any date of determination;
(f) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (c), (e), (h), (l) and (m) of this Section (provided that any Guaranty Obligations of Indebtedness incurred pursuant to subsection (h) or, to the extent applicable, subsection (m) of this Section shall be subordinated to the Obligations and the Canadian U.S. Obligations to the same extent as the Indebtedness that is being guaranteed);
(g) (i) (A) Indebtedness owed by any U.S. Credit Party to any other U.S. Credit Party (provided that, if requested by the U.S. Administrative Agent, such Indebtedness shall be subordinated to the U.S. Obligations on terms and conditions reasonably satisfactory to the U.S. Administrative Agent) and (B) Indebtedness owed by any Credit Party (other than the U.S. Borrower) to any other Credit Party (other than the U.S. Borrower) (provided that, if requested by the Administrative Agent, such Indebtedness shall be subordinated to the Obligations on terms and conditions reasonably satisfactory to the Administrative Agent) and (B) Indebtedness owed by any Canadian Credit Party to any other Canadian Credit Party (provided that, if requested by the Canadian Administrative Agent, such Indebtedness shall be subordinated to the Canadian Obligations on terms and conditions reasonably satisfactory to the Canadian Administrative Agent);
Appears in 2 contracts
Samples: Credit Agreement (AbitibiBowater Inc.), Credit Agreement (Bowater Inc)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) (i) the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(c)) and (ii) the Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(b) (i) the Canadian Obligations (excluding any Canadian Obligations pursuant to Hedging Obligations Agreements permitted pursuant to Section 10.1(c)) and (ii) the Guaranty Obligations in respect of the Canadian Obligations in favor of the Canadian Administrative Agent for the benefit of the Canadian Secured Parties;
(c) Indebtedness incurred in connection with a Hedging Agreement (i) which is entered into for interest rate, foreign currency or other business purposes and not for speculative purposes and (ii) with a counterparty reasonably satisfactory to the Administrative Agent and the Canadian Administrative Agent; provided that any counterparty that is a Lender, a Canadian Lender or any Affiliate thereof shall be deemed satisfactory to the Administrative Agent and the Canadian Administrative Agent;
(d) Indebtedness existing on the Closing Date and not otherwise permitted under this Section and, to the extent that the outstanding principal amount of such Indebtedness is in excess of $25,000,000, listed on Schedule 10.1 (including any Indebtedness (including, without limitation, any Guaranty Obligation of Indebtedness of another Person, but excluding the April 2008 Convertible Indebtedness) issued to refinance or to refund such Indebtedness or any Indebtedness which constitutes a renewal or extension of such Indebtedness); provided that (i) the principal amount of such Indebtedness may not be increased at the time of such refinancing, refunding, renewal or extension except (A) by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder and (B) by additional amounts, to the extent that the Consolidated Total Leverage Ratio, on a pro forma basis after giving effect to such increase, would be no greater than 5.50 to 1.00, (ii) no Default or Event of Default exists and is continuing or would be caused by the refinancing, refunding, renewal or extension thereof, (iii) the Administrative Agent and the Canadian Administrative Agent shall have received satisfactory written evidence that the Borrower and its Subsidiaries would be in compliance with all covenants in this Agreement and the Canadian Credit Agreement on a pro forma basis after giving effect to the refinancing, refunding, renewal or extension thereof, (iv) the weighted average life of such Indebtedness shall not be shorter than the weighted average life of the Indebtedness being refinanced, refunded, renewed or extended, (v) any terms of subordination set forth in the Indebtedness being refinanced, refunded, renewed or extended are not adversely affected in any material respect and (vi) none of the Existing Notes nor any Indebtedness incurred in accordance with this paragraph to refinance, refund, renew or extend the Existing Notes shall be guaranteed by the Borrower or any of its Subsidiaries (other than (A) those Existing Notes which are guaranteed by the Borrower as of the Closing Date and identified on Schedule 10.1 as being so guaranteed and (B) any Indebtedness issued to refinance any Existing Notes which, as of the Closing Date, (1) have an outstanding principal balance in excess of $50,000,000 and (2) mature or are subject to mandatory redemption prior to the Maturity Date);
(e) Indebtedness incurred in connection with Capital Leases, including those Capital Leases existing on the Closing Date, and purchase money Indebtedness, including all purchase money Indebtedness existing on the Closing Date, in an aggregate amount not to exceed $50,000,000 on any date of determination;
(fi) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (c), (e), (h), (l) and (mn) of this Section (provided that any Guaranty Obligations of Indebtedness incurred pursuant to subsection (h) or, to the extent applicable, subsection (mn) of this Section shall be subordinated to the Obligations and the Canadian Obligations to the same extent as the Indebtedness that is being guaranteed);; or
(ii) Guaranty Obligations of the Original Borrower with respect to the April 2008 Convertible Indebtedness; provided that (A) the Original Borrower shall not be permitted to create, incur, assume or suffer to exist such Guaranty Obligations unless (1) it shall have delivered to the Administrative Agent evidence, in form and substance reasonably satisfactory to the Administrative Agent, that the Abitibi Entities shall have consummated (or will concurrently consummate) their previously announced financing plan which will consist of the following: (x) $250,000,000 to $325,000,000 of new senior unsecured exchange notes of Abitibi, (y) $350,000,000 to $450,000,000 of new 364-day term loans of Abitibi and (z) approximately $400,000,000 of new senior secured notes or a term loan of Abitibi not to exceed a five year term (provided that Abitibi may replace or amend the financings described in this clause (A)(1) above so long as such replacement or amendment consists of non-convertible debt financings of Abitibi that are not guaranteed by, or secured by the assets of, the Borrower or any of its Subsidiaries and would not reduce the aggregate amount of proceeds reflected above in this clause (A) in excess of $50,000,000) or (2) the proceeds of such Indebtedness are used to permanently reduce, on a pro rata basis, the Commitment under this Agreement and the “Commitment” under and as defined in the Canadian Credit Agreement and to permanently repay, on a pro rata basis, Extensions of Credit under this Agreement and Canadian Extensions of Credit under the Canadian Credit Agreement or for such other use approved in writing by the Required Lenders (it being understood that any use that involves the reduction of the commitments or repayment of the extensions of credit under this Credit Facility or the Canadian Credit Facility shall continue to be applied to this Credit Facility and the Canadian Credit Facility on a pro rata basis unless otherwise agreed to by the Required Agreement Lenders and the Canadian Required Agreement Lenders); and (B) such Guaranty Obligations shall be unsecured and shall not exceed $350,000,000 in an aggregate principal amount (plus any paid-in-kind interest thereon) on any date of determination.
(g) (i) (A) Indebtedness owed by any Credit Party to any other Credit Party including, without limitation, Indebtedness evidenced by the New Borrower Notes (provided that, if requested by the Administrative Agent, such Indebtedness shall be subordinated to the Obligations on terms and conditions reasonably satisfactory to the Administrative Agent) and (B) Indebtedness owed by any Canadian Credit Party (other than the Borrower) to any other Canadian Credit Party (other than the Borrower) (provided that, if requested by the Canadian Administrative Agent, such Indebtedness shall be subordinated to the Canadian Obligations on terms and conditions reasonably satisfactory to the Canadian Administrative Agent);
(A) Indebtedness owed by any Canadian Credit Party (other than the Borrower) to any Credit Party (provided that such Indebtedness shall be payable by such Canadian Credit Party on demand by the applicable Credit Party) and (B) Indebtedness owed by any Credit Party to any Canadian Credit Party (provided that such Indebtedness shall be payable by such Credit Party (other than the Borrower) on demand by the applicable Canadian Credit Party);
Appears in 2 contracts
Samples: Credit Agreement (Bowater Inc), Credit Agreement (AbitibiBowater Inc.)
Limitations on Indebtedness. CreateHoldings shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Indebtedness Indebtedness, except:
(a) (i) Indebtedness under the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(c)) and (ii) the Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured PartiesLoans;
(b) obligations of Holdings or any Subsidiary (contingent or otherwise) existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the Canadian Obligations ordinary course of business (excluding Hedging Obligations permitted pursuant and not for speculative purposes) to Section 10.1(c)) hedge or mitigate risks to which Holdings or any Subsidiary of Holdings is exposed in the conduct of its business or the management of its liabilities and (ii) such Swap Contract does not contain any provision exonerating the Guaranty Obligations in favor of non-defaulting party from its obligation to make payments on outstanding transactions to the Canadian Administrative Agent for defaulting party; provided that the benefit of the Canadian Secured Partiesaggregate Swap Termination Value thereof shall not exceed $30 million at any time outstanding;
(c) Indebtedness incurred in connection with of a Hedging Agreement (i) which is entered into for interest rate, foreign currency or other business purposes and not for speculative purposes and (ii) with Subsidiary of Holdings owing to a counterparty reasonably satisfactory to the Administrative Agent and the Canadian Administrative Agent; provided that any counterparty that is a Lender, a Canadian Lender or any Affiliate thereof wholly owned Subsidiary of Holdings if such Indebtedness shall be deemed satisfactory to permitted under the Administrative Agent and the Canadian Administrative Agent;provisions of Section 5.04; 560824274.4 [NEWYORK 2931135_16]
(d) existing Indebtedness existing on the Closing Effective Date and not otherwise permitted under this Section andany refinancings, to the extent refundings, renewals or extensions thereof; provided that the outstanding principal amount of such Indebtedness is in excess of $25,000,000, listed on Schedule 10.1 (including any Indebtedness issued to refinance or to refund such Indebtedness or any Indebtedness which constitutes a renewal or extension of such Indebtedness); provided that (i) the principal amount of such Indebtedness may not be increased at the time of such refinancing, refunding, renewal or extension except (A) by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing, refunding, renewal or extension refinancing and by an amount equal to any existing commitments unutilized thereunder and (B) by additional amountsthe direct or any contingent obligor with respect thereto is not changed, to the extent that the Consolidated Total Leverage Ratio, on as a pro forma basis after giving effect to result of or in connection with such increase, would be no greater than 5.50 to 1.00, (ii) no Default or Event of Default exists and is continuing or would be caused by the refinancing, refunding, renewal or extension thereofextension; provided further, (iii) the Administrative Agent and the Canadian Administrative Agent shall have received satisfactory written evidence that the Borrower terms relating to principal amount, amortization, maturity, collateral (if any) and its Subsidiaries would be in compliance with all covenants in this Agreement subordination (if any), and the Canadian Credit Agreement on other material terms taken as a pro forma basis after giving effect to the whole, of any such refinancing, refunding, renewal renewing or extension thereofextending Indebtedness, (iv) the weighted average life and of such Indebtedness shall not be shorter any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to Holdings and its Subsidiaries than the weighted average life terms of any agreement or instrument governing the Indebtedness being refinanced, refunded, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate; provided, further, that such refinancing, refunding, renewing or extending Indebtedness has a final maturity date or redemption date, as applicable, no earlier than the final maturity date or redemption date, as applicable, of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being refinanced, refunded, renewed or extended;
(e) Guaranties of Holdings or any Subsidiary in respect of Indebtedness of Holdings or any Subsidiary otherwise permitted under clauses (a), (vb), (c) or (f) of this Section 5.05;
(f) Indebtedness in respect of Capitalized Lease Obligations, Synthetic Lease Obligations and purchase money obligations for fixed or capital assets within the limitations set forth in Section 5.02(j); provided, however, that the aggregate amount of all such Indebtedness at any one time outstanding shall not exceed $10.0 million;
(g) unsecured Indebtedness of Holdings or any Subsidiary of Holdings that is subordinated to the Loan Obligations in an aggregate principal amount outstanding not to exceed $40 million at any time; provided that the terms of subordination set forth of any such Indebtedness shall be reasonably satisfactory to the Lender;
(h) obligations of Holdings or any Subsidiary existing or arising under any bank guaranties or letters of credit provided to service companies in the ordinary course of business of Holdings and its Subsidiaries with respect to drilling operations, in an aggregate principal amount at any time outstanding not exceeding $10 million;
(i) Indebtedness of Harvest Dussafu BV or any wholly owned Subsidiary of Harvest Dussafu BV to which Harvest Dussafu BV transfers any of its assets held in connection with the operations of Harvest Dussafu BV in the Gabonese Republic (a “Gabon Subsidiary”), in an aggregate principal amount at any time outstanding not exceeding $300 million, incurred for the purpose of funding the operations of Harvest Dussafu BV or any Gabon Subsidiary in the Gabonese Republic; and
(j) Project Financing Indebtedness of any Subsidiary of Holdings. 560824274.4 [NEWYORK 2931135_16] For purposes of determining compliance with any U.S. dollar-denominated restriction on the Incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be 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 revolving credit Indebtedness; provided that if such Indebtedness is Incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-dominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-dominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced. Notwithstanding any other provision of this Section 5.05, the maximum amount of Indebtedness that Holdings may Incur pursuant to this Section 5.05 shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Indebtedness Incurred to refinance other Indebtedness, if Incurred in a different currency from the Indebtedness being refinanced, refunded, renewed or extended are not adversely affected in any material respect and (vi) none of the Existing Notes nor any Indebtedness incurred in accordance with this paragraph to refinance, refund, renew or extend the Existing Notes shall be guaranteed by calculated based on the Borrower or any of its Subsidiaries (other than (A) those Existing Notes which are guaranteed by the Borrower as of the Closing Date and identified on Schedule 10.1 as being so guaranteed and (B) any Indebtedness issued to refinance any Existing Notes which, as of the Closing Date, (1) have an outstanding principal balance in excess of $50,000,000 and (2) mature or are subject to mandatory redemption prior currency exchange rate applicable to the Maturity Date);
(e) currencies in which such refinancing Indebtedness incurred is denominated that is in connection with Capital Leases, including those Capital Leases existing effect on the Closing Date, and purchase money Indebtedness, including all purchase money Indebtedness existing on the Closing Date, in an aggregate amount not to exceed $50,000,000 on any date of determination;
(f) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (c), (e), (h), (l) and (m) of this Section (provided that any Guaranty Obligations of Indebtedness incurred pursuant to subsection (h) or, to the extent applicable, subsection (m) of this Section shall be subordinated to the Obligations and the Canadian Obligations to the same extent as the Indebtedness that is being guaranteed);
(g) (i) (A) Indebtedness owed by any Credit Party to any other Credit Party (provided that, if requested by the Administrative Agent, such Indebtedness shall be subordinated to the Obligations on terms and conditions reasonably satisfactory to the Administrative Agent) and (B) Indebtedness owed by any Canadian Credit Party to any other Canadian Credit Party (provided that, if requested by the Canadian Administrative Agent, such Indebtedness shall be subordinated to the Canadian Obligations on terms and conditions reasonably satisfactory to the Canadian Administrative Agent);refinancing.
Appears in 2 contracts
Samples: Loan Agreement (Harvest Natural Resources, Inc.), Loan Agreement (Harvest Natural Resources, Inc.)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) (i) the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(c10.1(b));
(b) Indebtedness incurred in connection with a Hedging Agreement 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 shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Closing Date and listed on Schedule 6.1(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;
(f) Indebtedness of a Person existing at the 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 or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets, not to exceed in the aggregate at any time outstanding $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 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 (iiiii) no Default or Event of Default exists and is continuing at the time of consummation thereof (both before and giving effect thereto);
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(b) (i) the Canadian Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(c)) and (ii) the Guaranty Obligations in favor of the Canadian Administrative Agent for the benefit of the Canadian Secured Parties;
(c) Indebtedness incurred in connection with a Hedging Agreement (i) which is entered into for interest rate, foreign currency or other business purposes and not for speculative purposes and (ii) with a counterparty reasonably satisfactory to the Administrative Agent and the Canadian Administrative Agent; provided that any counterparty that is a Lender, a Canadian Lender or any Affiliate thereof shall be deemed satisfactory to the Administrative Agent and the Canadian Administrative Agent;
(d) Indebtedness existing on the Closing Date and not otherwise permitted under this Section and, to the extent that the outstanding principal amount of such Indebtedness is in excess of $25,000,000, listed on Schedule 10.1 (including any Indebtedness issued to refinance or to refund such Indebtedness or any Indebtedness which constitutes a renewal or extension of such Indebtedness); provided that (i) the principal amount of such Indebtedness may not be increased at the time of such refinancing, refunding, renewal or extension except (A) by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder and (B) by additional amounts, to the extent that the Consolidated Total Leverage Ratio, on a pro forma basis after giving effect to such increase, would be no greater than 5.50 to 1.00, (ii) no Default or Event of Default exists and is continuing or would be caused by the refinancing, refunding, renewal or extension thereof, (iii) the Administrative Agent and the Canadian Administrative Agent shall have received satisfactory written evidence that the Borrower and its Subsidiaries would be in compliance with all covenants in this Agreement and the Canadian Credit Agreement on a pro forma basis after giving effect to the refinancing, refunding, renewal or extension thereof, (iv) the weighted average life of such Indebtedness shall not be shorter than the weighted average life of the Indebtedness being refinanced, refunded, renewed or extended, (v) any terms of subordination set forth in the Indebtedness being refinanced, refunded, renewed or extended are not adversely affected in any material respect and (vi) none of the Existing Notes nor any Indebtedness incurred in accordance with this paragraph to refinance, refund, renew or extend the Existing Notes shall be guaranteed by the Borrower or any of its Subsidiaries (other than (A) those Existing Notes which are guaranteed by the Borrower as of the Closing Date and identified on Schedule 10.1 as being so guaranteed and (B) any Indebtedness issued to refinance any Existing Notes which, as of the Closing Date, (1) have an outstanding principal balance in excess of $50,000,000 and (2) mature or are subject to mandatory redemption prior to the Maturity Date);
(e) Indebtedness incurred in connection with Capital Leases, including those Capital Leases existing on the Closing Date, and purchase money Indebtedness, including all purchase money Indebtedness existing on the Closing Date, in an aggregate amount not to exceed $50,000,000 on any date of determination;
(fh) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (c), (e), (h), (l) and (m) of this Section (provided that any Guaranty Obligations of Indebtedness incurred pursuant to subsection (h) or, to the extent applicable, subsection (m) of this Section shall be subordinated to the Obligations and the Canadian Obligations to the same extent as the Indebtedness that is being guaranteed)Section;
(g) (i) (A) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any other Credit Party Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) unsecured Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to each of the Senior Unsecured Notes, and, in each case, any refinancings, refundings, renewals, extensions or exchanges thereof (“Refinancing Indebtedness”); provided thatthat (i) such Refinancing Indebtedness is an original aggregate principal amount not greater than the aggregate principal amount of, if requested 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 AgentAgent 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;
(l) additional unsecured Indebtedness shall be subordinated of the Borrower or its Restricted Subsidiaries; provided that (i) such Indebtedness matures at least six (6) months after the Revolving Credit Maturity Date, (ii) after giving effect to the Obligations incurrence of any such Indebtedness on terms 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 conditions reasonably satisfactory 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 AgentAgent 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 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 (Bb), 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 $150,000,000, (ii) such Indebtedness matures at least six (6) months after the Revolving Credit Maturity Date 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 owed incurred by the Borrower or any Canadian Credit Party 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 Canadian Credit Party 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; and
(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, if requested by the Canadian Administrative Agent, that such Indebtedness shall be subordinated to the Canadian Obligations on terms and conditions reasonably satisfactory to the Canadian Administrative Agent);is extinguished within five (5) Business Days of incurrence.
Appears in 2 contracts
Samples: Credit Agreement (Corrections Corp of America), Credit Agreement (Corrections Corp of America)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) (i) the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(c)) and (ii) the Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(b) (i) the Canadian U.S. Obligations (excluding any U.S. Obligations pursuant to Hedging Obligations Agreements permitted pursuant to Section 10.1(c)) and (ii) the Guaranty Obligations in respect of the U.S. Obligations in favor of the Canadian U.S. Administrative Agent for the benefit of the Canadian U.S. Secured Parties;
(c) Indebtedness incurred in connection with a Hedging Agreement (i) which is entered into for interest rate, foreign currency or other business purposes and not for speculative purposes and (ii) with a counterparty reasonably satisfactory to the Administrative Agent and the Canadian U.S. Administrative Agent; provided that any counterparty that is a Lender, a Canadian U.S. Lender or any Affiliate thereof shall be deemed satisfactory to the Administrative Agent and the Canadian U.S. Administrative Agent;
(d) Indebtedness existing on the Closing Date and not otherwise permitted under this Section and, to the extent that the outstanding principal amount of such Indebtedness is in excess of $25,000,000, listed on Schedule 10.1 (including any Indebtedness (including, without limitation, any Guaranty Obligation of Indebtedness of another Person) issued to refinance or to refund such Indebtedness or any Indebtedness which constitutes a renewal or extension of such Indebtedness); provided that (i) the principal amount of such Indebtedness may not be increased at the time of such refinancing, refunding, renewal or extension except (A) by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder and (B) by additional amounts, to the extent that the Consolidated Total Leverage Ratio, on a pro forma basis after giving effect to such increase, would be no greater than 5.50 to 1.00, (ii) no Default or Event of Default exists and is continuing or would be caused by the refinancing, refunding, renewal or extension thereof, (iii) the Administrative Agent and the Canadian U.S. Administrative Agent shall have received satisfactory written evidence that the U.S. Borrower and its Subsidiaries would be in compliance with all covenants in this Agreement and the Canadian U.S. Credit Agreement on a pro forma basis after giving effect to the refinancing, refunding, renewal or extension thereof, (iv) the weighted average life of such Indebtedness shall not be shorter than the weighted average life of the Indebtedness being refinanced, refunded, renewed or extended, (v) any terms of subordination set forth in the Indebtedness being refinanced, refunded, renewed or extended are not adversely affected in any material respect and (vi) none of the Existing Notes nor any Indebtedness incurred in accordance with this paragraph to refinance, refund, renew or extend the Existing Notes shall be guaranteed by the U.S. Borrower or any of its Subsidiaries (other than (A) those Existing Notes which are guaranteed by the U.S. Borrower as of the Closing Date and identified on Schedule 10.1 as being so guaranteed and (B) any Indebtedness issued to refinance any Existing Notes which, as of the Closing Date, (1) have an outstanding principal balance in excess of $50,000,000 and (2) mature or are subject to mandatory redemption prior to the U.S. Maturity Date);
(e) Indebtedness incurred in connection with Capital Leases, including those Capital Leases existing on the Closing Date, and purchase money Indebtedness, including all purchase money Indebtedness existing on the Closing Date, in an aggregate amount not to exceed $50,000,000 on any date of determination;
(f) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (c), (e), (h), (l), (m) and (mn) of this Section (provided that (i) any Guaranty Obligations of Indebtedness incurred pursuant to subsection (h) or, to the extent applicable, subsection (mn) of this Section shall be subordinated to the Obligations and the Canadian U.S. Obligations to the same extent as the Indebtedness that is being guaranteedguaranteed and (ii) with respect to any Guaranty Obligations guaranteeing Indebtedness incurred pursuant to subsection (m) of this Section, the U.S. Borrower and its Subsidiaries shall have complied with Section 8.12);
(g) (i) (A) Indebtedness owed by any U.S. Credit Party to any other U.S. Credit Party, including, without limitation, Indebtedness evidenced by the Catawba Note (provided that, if requested by the U.S. Administrative Agent, such Indebtedness (other than the Catawba Note) shall be subordinated to the U.S. Obligations on terms and conditions reasonably satisfactory to the U.S. Administrative Agent) and (B) Indebtedness owed by any Credit Party (other than the U.S. Borrower) to any other Credit Party (other than the U.S. Borrower) (provided that, if requested by the Administrative Agent, such Indebtedness shall be subordinated to the Obligations on terms and conditions reasonably satisfactory to the Administrative Agent);
(A) Indebtedness owed by any Credit Party (other than the U.S. Borrower) to any U.S. Credit Party (provided that such Indebtedness shall be payable by such Credit Party on demand by the applicable U.S. Credit Party) and (B) Indebtedness owed by any Canadian U.S. Credit Party to any other Canadian Credit Party (provided that, if requested by the Canadian Administrative Agent, that such Indebtedness shall be subordinated to payable by such U.S. Credit Party (other than the Canadian Obligations U.S. Borrower) on terms and conditions reasonably satisfactory to demand by the Canadian Administrative Agentapplicable Credit Party);
Appears in 2 contracts
Samples: Credit Agreement (Bowater Inc), Credit Agreement (AbitibiBowater Inc.)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) (i) the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(c)) and (ii) the Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(b) (i) the Canadian Obligations (excluding any Canadian Obligations pursuant to Hedging Obligations Agreements permitted pursuant to Section 10.1(c)) and (ii) the Guaranty Obligations in respect of the Canadian Obligations in favor of the Canadian Administrative Agent for the benefit of the Canadian Secured Parties;
(c) Indebtedness incurred in connection with a Hedging Agreement (i) which is entered into for interest rate, foreign currency or other business purposes and not for speculative purposes and (ii) with a counterparty reasonably satisfactory to the Administrative Agent and the Canadian Administrative Agent; provided that any counterparty that is a Lender, a Canadian Lender or any Affiliate thereof shall be deemed satisfactory to the Administrative Agent and the Canadian Administrative Agent;
(d) Indebtedness existing on the Closing Date and not otherwise permitted under this Section and, to the extent that the outstanding principal amount of such Indebtedness is in excess of $25,000,000, listed on Schedule 10.1 (including any Indebtedness (including, without limitation, any Guaranty Obligation of Indebtedness of another Person) issued to refinance or to refund such Indebtedness or any Indebtedness which constitutes a renewal or extension of such Indebtedness); provided that (i) the principal amount of such Indebtedness may not be increased at the time of such refinancing, refunding, renewal or extension except (A) by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder and (B) by additional amounts, to the extent that the Consolidated Total Leverage Ratio, on a pro forma basis after giving effect to such increase, would be no greater than 5.50 to 1.00, (ii) no Default or Event of Default exists and is continuing or would be caused by the refinancing, refunding, renewal or extension thereof, (iii) the Administrative Agent and the Canadian Administrative Agent shall have received satisfactory written evidence that the Borrower and its Subsidiaries would be in compliance with all covenants in this Agreement and the Canadian Credit Agreement on a pro forma basis after giving effect to the refinancing, refunding, renewal or extension thereof, (iv) the weighted average life of such Indebtedness shall not be shorter than the weighted average life of the Indebtedness being refinanced, refunded, renewed or extended, (v) any terms of subordination set forth in the Indebtedness being refinanced, refunded, renewed or extended are not adversely affected in any material respect and (vi) none of the Existing Notes nor any Indebtedness incurred in accordance with this paragraph to refinance, refund, renew or extend the Existing Notes shall be guaranteed by the Borrower or any of its Subsidiaries (other than (A) those Existing Notes which are guaranteed by the Borrower as of the Closing Date and identified on Schedule 10.1 as being so guaranteed and (B) any Indebtedness issued to refinance any Existing Notes which, as of the Closing Date, (1) have an outstanding principal balance in excess of $50,000,000 and (2) mature or are subject to mandatory redemption prior to the Maturity Date);
(e) Indebtedness incurred in connection with Capital Leases, including those Capital Leases existing on the Closing Date, and purchase money Indebtedness, including all purchase money Indebtedness existing on the Closing Date, in an aggregate amount not to exceed $50,000,000 on any date of determination;
(f) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (c), (e), (h), (l), (m) and (mn) of this Section (provided that (i) any Guaranty Obligations of Indebtedness incurred pursuant to subsection (h) or, to the extent applicable, subsection (mn) of this Section shall be subordinated to the Obligations and the Canadian Obligations to the same extent as the Indebtedness that is being guaranteedguaranteed and (ii) with respect to any Guaranty Obligations guaranteeing Indebtedness incurred pursuant to subsection (m) of this Section, the Borrower and its Subsidiaries shall have complied with Section 8.12);
(g) (i) (Ai)(A) Indebtedness owed by any Credit Party to any other Credit Party including, without limitation, Indebtedness evidenced by the Catawba Note (provided that, if requested by the Administrative Agent, such Indebtedness (other than the Catawba Note) shall be subordinated to the Obligations on terms and conditions reasonably satisfactory to the Administrative Agent) and (B) Indebtedness owed by any Canadian Credit Party (other than the Borrower) to any other Canadian Credit Party (other than the Borrower) (provided that, if requested by the Canadian Administrative Agent, such Indebtedness shall be subordinated to the Canadian Obligations on terms and conditions reasonably satisfactory to the Canadian Administrative Agent);
(A) Indebtedness owed by any Canadian Credit Party (other than the Borrower) to any Credit Party (provided that such Indebtedness shall be payable by such Canadian Credit Party on demand by the applicable Credit Party) and (B) Indebtedness owed by any Credit Party to any Canadian Credit Party (provided that such Indebtedness shall be payable by such Credit Party (other than the Borrower) on demand by the applicable Canadian Credit Party);
Appears in 2 contracts
Samples: Third Amendment and Waiver (AbitibiBowater Inc.), Credit Agreement (Bowater Inc)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) (i) the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(c)) and (ii) the Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(b) (i) the Canadian Obligations (excluding any Canadian Obligations pursuant to Hedging Obligations Agreements permitted pursuant to Section 10.1(c)) and (ii) the Guaranty Obligations in respect of the Canadian Obligations in favor of the Canadian Administrative Agent for the benefit of the Canadian Secured Parties;
(c) Indebtedness incurred in connection with a Hedging Agreement (i) which is entered into for interest rate, foreign currency or other business purposes and not for speculative purposes and (ii) with a counterparty reasonably satisfactory to the Administrative Agent and the Canadian Administrative Agent; provided that any counterparty that is a Lender, a Canadian Lender or any Affiliate thereof shall be deemed satisfactory to the Administrative Agent and the Canadian Administrative Agent;
(d) Indebtedness existing on the Closing Date and not otherwise permitted under this Section and, to the extent that the outstanding principal amount of such Indebtedness is in excess of $25,000,000, listed on Schedule 10.1 (including any Indebtedness (including, without limitation, any Guaranty Obligation of Indebtedness of another Person, but excluding the April 2008 Convertible Indebtedness) issued to refinance or to refund such Indebtedness or any Indebtedness which constitutes a renewal or extension of such Indebtedness); provided that (i) the principal amount of such Indebtedness may not be increased at the time of such refinancing, refunding, renewal or extension except (A) by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder and (B) by additional amounts, to the extent that the Consolidated Total Leverage Ratio, on a pro forma basis after giving effect to such increase, would be no greater than 5.50 to 1.00, (ii) no Default or Event of Default exists and is continuing or would be caused by the refinancing, refunding, renewal or extension thereof, (iii) the Administrative Agent and the Canadian Administrative Agent shall have received satisfactory written evidence that the Borrower and its Subsidiaries would be in compliance with all covenants in this Agreement and the Canadian Credit Agreement on a pro forma basis after giving effect to the refinancing, refunding, renewal or extension thereof, (iv) the weighted average life of such Indebtedness shall not be shorter than the weighted average life of the Indebtedness being refinanced, refunded, renewed or extended, (v) any terms of subordination set forth in the Indebtedness being refinanced, refunded, renewed or extended are not adversely affected in any material respect respect, (vi) if the Indebtedness being refinanced is not secured by the assets of any Credit Party or any of its Subsidiaries, such refinancing Indebtedness shall also not be secured by the assets of any Credit Party or any of its Subsidiaries and (vivii) none of the Existing Notes nor any Indebtedness incurred in accordance with this paragraph to refinance, refund, renew or extend the Existing Notes shall be guaranteed by the Borrower or any of its Subsidiaries (other than (A) those Existing Notes which are guaranteed by the Borrower as of the Closing Date and identified on Schedule 10.1 as being so guaranteed and (B) any Indebtedness issued to refinance any Existing Notes which, as of the Closing Date, (1) have an outstanding principal balance in excess of $50,000,000 and (2) mature or are subject to mandatory redemption prior to the Maturity Date);
(e) Indebtedness incurred in connection with Capital Leases, including those Capital Leases existing on the Closing Date, and purchase money Indebtedness, including all purchase money Indebtedness existing on the Closing Date, in an aggregate amount not to exceed $50,000,000 on any date of determination;
(fi) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (c), (e), (h), (l), (m) and (mn) of this Section (provided that any Guaranty Obligations of Indebtedness incurred pursuant to subsection (h) or, to the extent applicable, subsection (mn) of this Section shall be subordinated to the Obligations and the Canadian Obligations to the same extent as the Indebtedness that is being guaranteed);; or
(ii) Guaranty Obligations of the Original Borrower with respect to the April 2008 Convertible Indebtedness; provided that (A) the Original Borrower shall not be permitted to create, incur, assume or suffer to exist such Guaranty Obligations unless (1) it shall have delivered to the Administrative Agent evidence, in form and substance reasonably satisfactory to the Administrative Agent, that the Abitibi Entities shall have consummated (or will concurrently consummate) their previously announced financing plan which will consist of the following: (x) $250,000,000 to $325,000,000 of new senior unsecured exchange notes of Abitibi, (y) $350,000,000 to $450,000,000 of new 364-day term loans of Abitibi and (z) approximately $400,000,000 of new senior secured notes or a term loan of Abitibi not to exceed a five year term (provided that Abitibi may replace or amend the financings described in this clause (A)(1) above so long as such replacement or amendment consists of non-convertible debt financings of Abitibi that are not guaranteed by, or secured by the assets of, the Borrower or any of its Subsidiaries and would not reduce the aggregate amount of proceeds reflected above in this clause (A) in excess of $50,000,000) or (2) the proceeds of such Indebtedness are used to permanently reduce, on a pro rata basis, the Commitment under this Agreement and the Canadian Credit Agreement Commitment and to permanently repay, on a pro rata basis, Extensions of Credit under this Agreement and Canadian Extensions of Credit under the Canadian Credit Agreement or for such other use approved in writing by the Required Lenders (it being understood that any use that involves the reduction of the commitments or repayment of the extensions of credit under this Credit Facility or the Canadian Credit Facility shall continue to be applied to this Credit Facility and the Canadian Credit Facility on a pro rata basis unless otherwise agreed to by the Required Agreement Lenders and the Canadian Required Agreement Lenders); and (B) such Guaranty Obligations shall be unsecured and shall not exceed $350,000,000 in an aggregate principal amount (plus any paid-in-kind interest thereon) on any date of determination.
(g) (i) (A) Indebtedness owed by any Credit Party to any other Credit Party including, without limitation, Indebtedness evidenced by the New Borrower Notes (provided that, if requested by the Administrative Agent, such Indebtedness shall be subordinated to the Obligations on terms and conditions reasonably satisfactory to the Administrative Agent) and (B) Indebtedness owed by any Canadian Credit Party (other than the Borrower) to any other Canadian Credit Party (other than the Borrower) (provided that, if requested by the Canadian Administrative Agent, such Indebtedness shall be subordinated to the Canadian Obligations on terms and conditions reasonably satisfactory to the Canadian Administrative Agent);
(A) Indebtedness owed by any Canadian Credit Party (other than the Borrower) to any Credit Party (provided that such Indebtedness shall be payable by such Canadian Credit Party on demand by the applicable Credit Party) and (B) Indebtedness owed by any Credit Party to any Canadian Credit Party (provided that such Indebtedness shall be payable by such Credit Party (other than the Borrower) on demand by the applicable Canadian Credit Party);
Appears in 2 contracts
Samples: Credit Agreement (Bowater Inc), Eighth Amendment and Waiver (AbitibiBowater Inc.)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) (i) the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(c10.1(b));
(b) Indebtedness incurred in connection with a Hedging Agreement 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 shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Closing Date and listed on Schedule 6.1(l), and the renewal, refinancing, refunding, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(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;
(f) Indebtedness of a Person existing at the 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 or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets, not to exceed in the aggregate at any time outstanding $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 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 (iiiii) no Default or Event of Default exists and is continuing at the time of consummation thereof (both before and giving effect thereto);
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(b) (i) the Canadian Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(c)) and (ii) the Guaranty Obligations in favor of the Canadian Administrative Agent for the benefit of the Canadian Secured Parties;
(c) Indebtedness incurred in connection with a Hedging Agreement (i) which is entered into for interest rate, foreign currency or other business purposes and not for speculative purposes and (ii) with a counterparty reasonably satisfactory to the Administrative Agent and the Canadian Administrative Agent; provided that any counterparty that is a Lender, a Canadian Lender or any Affiliate thereof shall be deemed satisfactory to the Administrative Agent and the Canadian Administrative AgentLenders;
(d) Indebtedness existing on the Closing Date and not otherwise permitted under this Section and, to the extent that the outstanding principal amount of such Indebtedness is in excess of $25,000,000, listed on Schedule 10.1 (including any Indebtedness issued to refinance or to refund such Indebtedness or any Indebtedness which constitutes a renewal or extension of such Indebtedness); provided that (i) the principal amount of such Indebtedness may not be increased at the time of such refinancing, refunding, renewal or extension except (A) by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder and (B) by additional amounts, to the extent that the Consolidated Total Leverage Ratio, on a pro forma basis after giving effect to such increase, would be no greater than 5.50 to 1.00, (ii) no Default or Event of Default exists and is continuing or would be caused by the refinancing, refunding, renewal or extension thereof, (iii) the Administrative Agent and the Canadian Administrative Agent shall have received satisfactory written evidence that the Borrower and its Subsidiaries would be in compliance with all covenants in this Agreement and the Canadian Credit Agreement on a pro forma basis after giving effect to the refinancing, refunding, renewal or extension thereof, (iv) the weighted average life of such Indebtedness shall not be shorter than the weighted average life of the Indebtedness being refinanced, refunded, renewed or extended, (v) any terms of subordination set forth in the Indebtedness being refinanced, refunded, renewed or extended are not adversely affected in any material respect and (vi) none of the Existing Notes nor any Indebtedness incurred in accordance with this paragraph to refinance, refund, renew or extend the Existing Notes shall be guaranteed by the Borrower or any of its Subsidiaries (other than (A) those Existing Notes which are guaranteed by the Borrower as of the Closing Date and identified on Schedule 10.1 as being so guaranteed and (B) any Indebtedness issued to refinance any Existing Notes which, as of the Closing Date, (1) have an outstanding principal balance in excess of $50,000,000 and (2) mature or are subject to mandatory redemption prior to the Maturity Date);
(e) Indebtedness incurred in connection with Capital Leases, including those Capital Leases existing on the Closing Date, and purchase money Indebtedness, including all purchase money Indebtedness existing on the Closing Date, in an aggregate amount not to exceed $50,000,000 on any date of determination;
(fh) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (c), (e), (h), (l) and (m) of this Section (provided that any Guaranty Obligations of Indebtedness incurred pursuant to subsection (h) or, to the extent applicable, subsection (m) of this Section shall be subordinated to the Obligations and the Canadian Obligations to the same extent as the Indebtedness that is being guaranteed)Section;
(g) (i) (A) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any other Credit Party Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) unsecured Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to each of the Senior Unsecured Notes, and, in each case, any refinancings, refundings, renewals, extensions or exchanges thereof (“Refinancing Indebtedness”); provided thatthat (i) such Refinancing Indebtedness is an original aggregate principal amount not greater than the aggregate principal amount of, if requested 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 AgentAgent 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;
(l) additional unsecured Indebtedness shall be subordinated of the Borrower or its Restricted Subsidiaries; provided that (i) such Indebtedness matures at least six (6) months after the Revolving Credit Maturity Date, (ii) after giving effect to the Obligations incurrence of any such Indebtedness on terms 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 conditions reasonably satisfactory 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 AgentAgent a certificate of its chief financial officer 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 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 (Bb), 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) not more than $150,000,000 of such secured Indebtedness is recourse to any Credit Party, (ii) such Indebtedness matures at least six (6) months after the Revolving Credit Maturity Date 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 owed incurred by the Borrower or any Canadian Credit Party 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 Canadian Credit Party 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; and
(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, if requested by the Canadian Administrative Agent, that such Indebtedness shall be subordinated to the Canadian Obligations on terms and conditions reasonably satisfactory to the Canadian Administrative Agent);is extinguished within five (5) Business Days of incurrence.
Appears in 1 contract
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) (i) the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(c)) and (ii) the Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(b) (i) the Canadian U.S. Obligations (excluding any U.S. Obligations pursuant to Hedging Obligations Agreements permitted pursuant to Section 10.1(c)) and (ii) the Guaranty Obligations in respect of the U.S. Obligations in favor of the Canadian U.S. Administrative Agent for the benefit of the Canadian U.S. Secured Parties;
(c) Indebtedness incurred in connection with a Hedging Agreement (i) which is entered into for interest rate, foreign currency or other business purposes and not for speculative purposes and (ii) with a counterparty reasonably satisfactory to the Administrative Agent and the Canadian U.S. Administrative Agent; provided that any counterparty that is a Lender, a Canadian U.S. Lender or any Affiliate thereof shall be deemed satisfactory to the Administrative Agent and the Canadian U.S. Administrative Agent;
(d) Indebtedness existing on the Closing Date and not otherwise permitted under this Section and, to the extent that the outstanding principal amount of such Indebtedness is in excess of $25,000,000, listed on Schedule 10.1 (including any Indebtedness (including, without limitation, any Guaranty Obligation of Indebtedness of another Person but excluding the April 2008 Convertible Indebtedness) issued to refinance or to refund such Indebtedness or any Indebtedness which constitutes a renewal or extension of such Indebtedness); provided that (i) the principal amount of such Indebtedness may not be increased at the time of such refinancing, refunding, renewal or extension except (A) by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder and (B) by additional amounts, to the extent that the Consolidated Total Leverage Ratio, on a pro forma basis after giving effect to such increase, would be no greater than 5.50 to 1.00, (ii) no Default or Event of Default exists and is continuing or would be caused by the refinancing, refunding, renewal or extension thereof, (iii) the Administrative Agent and the Canadian U.S. Administrative Agent shall have received satisfactory written evidence that the U.S. Borrower and its Subsidiaries would be in compliance with all covenants in this Agreement and the Canadian U.S. Credit Agreement on a pro forma basis after giving effect to the refinancing, refunding, renewal or extension thereof, (iv) the weighted average life of such Indebtedness shall not be shorter than the weighted average life of the Indebtedness being refinanced, refunded, renewed or extended, (v) any terms of subordination set forth in the Indebtedness being refinanced, refunded, renewed or extended are not adversely affected in any material respect and (vi) none of the Existing Notes nor any Indebtedness incurred in accordance with this paragraph to refinance, refund, renew or extend the Existing Notes shall be guaranteed by the U.S. Borrower or any of its Subsidiaries (other than (A) those Existing Notes which are guaranteed by the U.S. Borrower as of the Closing Date and identified on Schedule 10.1 as being so guaranteed and (B) any Indebtedness issued to refinance any Existing Notes which, as of the Closing Date, (1) have an outstanding principal balance in excess of $50,000,000 and (2) mature or are subject to mandatory redemption prior to the U.S. Maturity Date);
(e) Indebtedness incurred in connection with Capital Leases, including those Capital Leases existing on the Closing Date, and purchase money Indebtedness, including all purchase money Indebtedness existing on the Closing Date, in an aggregate amount not to exceed $50,000,000 on any date of determination;
(fi) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (c), (e), (h), (l) and (mn) of this Section (provided that any Guaranty Obligations of Indebtedness incurred pursuant to subsection (h) or, to the extent applicable, subsection (mn) of this Section shall be subordinated to the Obligations and the Canadian U.S. Obligations to the same extent as the Indebtedness that is being guaranteed); or
(ii) Guaranty Obligations of the Original U.S. Borrower with respect to the April 2008 Convertible Indebtedness; provided that (A) the Original U.S. Borrower shall not be permitted to create, incur, assume or suffer to exist such Guaranty Obligations unless (1) it shall have delivered to the U.S. Administrative Agent evidence, in form and substance reasonably satisfactory to the U.S. Administrative Agent, that the Abitibi Entities shall have consummated (or will concurrently consummate) their previously announced financing plan which will consist of the following: (x) $250,000,000 to $325,000,000 of new senior unsecured exchange notes of Abitibi, (y) $350,000,000 to $450,000,000 of new 364-day term loans of Abitibi and (z) approximately $400,000,000 of new senior secured notes or a term loan of Abitibi not to exceed a five year term (provided that Abitibi may replace or amend the financings described in this clause (A)(1) above so long as such replacement or amendment consists of non-convertible debt financings of Abitibi that are not guaranteed by, or secured by the assets of, the U.S. Borrower or any of its Subsidiaries and would not reduce the aggregate amount of proceeds reflected above in this clause (A) in excess of $50,000,000) or (2) the proceeds of such Indebtedness are used to permanently reduce, on a pro rata basis, the Commitment under this Agreement and the "Commitment" under and as defined in the U.S. Credit Agreement and to permanently repay, on a pro rata basis, Extensions of Credit under this Agreement and U.S. Extensions of Credit under the U.S. Credit Agreement or for such other use approved in writing by the Required Lenders (it being understood that any use that involves the reduction of the commitments or repayment of the extensions of credit under this Credit Facility or the U.S. Credit Facility shall continue to be applied to this Credit Facility and the U.S. Credit Facility on a pro rata basis unless otherwise agreed to by the Required Agreement Lenders and the U.S. Required Agreement Lenders); and (B) such Guaranty Obligations shall be unsecured and shall not exceed $350,000,000 in an aggregate principal amount (plus any paid-in-kind interest thereon) on any date of determination;
(g) (i) (A) Indebtedness owed by any U.S. Credit Party to any other U.S. Credit Party, including, without limitation, Indebtedness evidenced by the New U.S. Borrower Notes (provided that, if requested by the U.S. Administrative Agent, such Indebtedness shall be subordinated to the U.S. Obligations on terms and conditions reasonably satisfactory to the U.S. Administrative Agent) and (B) Indebtedness owed by any Credit Party (other than the U.S. Borrower) to any other Credit Party (other than the U.S. Borrower) (provided that, if requested by the Administrative Agent, such Indebtedness shall be subordinated to the Obligations on terms and conditions reasonably satisfactory to the Administrative Agent);
(A) Indebtedness owed by any Credit Party (other than the U.S. Borrower) to any U.S. Credit Party (provided that such Indebtedness shall be payable by such Credit Party on demand by the applicable U.S. Credit Party) and (B) Indebtedness owed by any Canadian U.S. Credit Party to any other Canadian Credit Party (provided that, if requested by the Canadian Administrative Agent, that such Indebtedness shall be subordinated to payable by such U.S. Credit Party (other than the Canadian Obligations U.S. Borrower) on terms and conditions reasonably satisfactory to demand by the Canadian Administrative Agentapplicable Credit Party);
Appears in 1 contract
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) (i) the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(c)) and (ii) the Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(b) (i) the Canadian U.S. Obligations (excluding any U.S. Obligations pursuant to Hedging Obligations Agreements permitted pursuant to Section 10.1(c)) and (ii) the Guaranty Obligations in respect of the U.S. Obligations in favor of the Canadian U.S. Administrative Agent for the benefit of the Canadian U.S. Secured Parties;
(c) Indebtedness incurred in connection with a Hedging Agreement (i) which is entered into for interest rate, foreign currency or other business purposes and not for speculative purposes and (ii) with a counterparty reasonably satisfactory to the Administrative Agent and the Canadian U.S. Administrative Agent; provided that any counterparty that is a Lender, a Canadian U.S. Lender or any Affiliate thereof shall be deemed satisfactory to the Administrative Agent and the Canadian U.S. Administrative Agent;
(d) Indebtedness existing on the Closing Date and not otherwise permitted under this Section and, to the extent that the outstanding principal amount of such Indebtedness is in excess of $25,000,000, listed on Schedule 10.1 (including any Indebtedness (including, without limitation, any Guaranty Obligation of Indebtedness of another Person but excluding the April 2008 Convertible Indebtedness) issued to refinance or to refund such Indebtedness or any Indebtedness which constitutes a renewal or extension of such Indebtedness); provided that (i) the principal amount of such Indebtedness may not be increased at the time of such refinancing, refunding, renewal or extension except (A) by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing, refunding, renewal or extension and by an amount equal to any existing -- commitments unutilized thereunder and (B) by additional amounts, to the extent that the Consolidated Total Leverage Ratio, on a pro forma basis after giving effect to such increase, would be no greater than 5.50 to 1.00, (ii) no Default or Event of Default exists and is continuing or would be caused by the refinancing, refunding, renewal or extension thereof, (iii) the Administrative Agent and the Canadian U.S. Administrative Agent shall have received satisfactory written evidence that the U.S. Borrower and its Subsidiaries would be in compliance with all covenants in this Agreement and the Canadian U.S. Credit Agreement on a pro forma basis after giving effect to the refinancing, refunding, renewal or extension thereof, (iv) the weighted average life of such Indebtedness shall not be shorter than the weighted average life of the Indebtedness being refinanced, refunded, renewed or extended, (v) any terms of subordination set forth in the Indebtedness being refinanced, refunded, renewed or extended are not adversely affected in any material respect respect, (vi) if the Indebtedness being refinanced is not secured by the assets of any Credit Party or its Subsidiaries or any U.S. Credit Party or its Subsidiaries, such refinancing Indebtedness shall also not be secured by the assets of any Credit Party or its Subsidiaries or any U.S. Credit Party or its Subsidiaries and (vivii) none of the Existing Notes nor any Indebtedness incurred in accordance with this paragraph to refinance, refund, renew or extend the Existing Notes shall be guaranteed by the U.S. Borrower or any of its Subsidiaries (other than (A) those Existing Notes which are guaranteed by the U.S. Borrower as of the Closing Date and identified on Schedule 10.1 as being so guaranteed and (B) any Indebtedness issued to refinance any Existing Notes which, as of the Closing Date, (1) have an outstanding principal balance in excess of $50,000,000 and (2) mature or are subject to mandatory redemption prior to the U.S. Maturity Date);
(e) Indebtedness incurred in connection with Capital Leases, including those Capital Leases existing on the Closing Date, and purchase money Indebtedness, including all purchase money Indebtedness existing on the Closing Date, in an aggregate amount not to exceed $50,000,000 on any date of determination;
(fi) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (c), (e), (h), (l), (m) and (mn) of this Section (provided that any Guaranty Obligations of Indebtedness incurred pursuant to subsection (h) or, to the extent applicable, subsection (m) of n)of this Section shall be subordinated to the Obligations and the Canadian U.S. Obligations to the same extent as the Indebtedness that is being guaranteed); or
(ii) Guaranty Obligations of the Original U.S. Borrower with respect to the April 2008 Convertible Indebtedness; provided that (A) the Original U.S. Borrower shall not be permitted to create, incur, assume or suffer to exist such Guaranty Obligations unless (1) it shall have delivered to the U.S. Administrative Agent evidence, in form and substance reasonably satisfactory to the U.S. Administrative Agent, that the Abitibi Entities shall have consummated (or will concurrently consummate) their previously announced financing plan which will consist of the following: (x) $250,000,000 to $325,000,000 of new senior unsecured exchange notes of Abitibi, (y) $350,000,000 to $450,000,000 of new 364-day term loans of Abitibi and (z) approximately $400,000,000 of new senior secured notes or a term loan of Abitibi not to exceed a five year term (provided that Abitibi may replace or amend the financings described in this clause (A)(1) above so long as such replacement or amendment consists of non-convertible debt financings of Abitibi that are not guaranteed by, or secured by the assets of, the U.S. -- Borrower or any of its Subsidiaries and would not reduce the aggregate amount of proceeds reflected above in this clause (A) in excess of $50,000,000) or (2) the proceeds of such Indebtedness are used to permanently reduce, on a pro rata basis, the Commitment under this Agreement and the U.S. Commitment and to permanently repay, on a pro rata basis, Extensions of Credit under this Agreement and U.S. Extensions of Credit under the U.S. Credit Agreement or for such other use approved in writing by the Required Lenders (it being understood that any use that involves the reduction of the commitments or repayment of the extensions of credit under this Credit Facility or the U.S. Credit Facility shall continue to be applied to this Credit Facility and the U.S. Credit Facility on a pro rata basis unless otherwise agreed to by the Required Agreement Lenders and the U.S. Required Agreement Lenders); and (B) such Guaranty Obligations shall be unsecured and shall not exceed $350,000,000 in an aggregate principal amount (plus any paid-in-kind interest thereon) on any date of determination;
(g) (i) (A) Indebtedness owed by any U.S. Credit Party to any other U.S. Credit Party, including, without limitation, Indebtedness evidenced by the New U.S. Borrower Notes (provided that, if requested by the U.S. Administrative Agent, such Indebtedness shall be subordinated to the U.S. Obligations on terms and conditions reasonably satisfactory to the U.S. Administrative Agent) and (B) Indebtedness owed by any Credit Party (other than the U.S. Borrower) to any other Credit Party (other than the U.S. Borrower) (provided that, if requested by the Administrative Agent, such Indebtedness shall be subordinated to the Obligations on terms and conditions reasonably satisfactory to the Administrative Agent);
(i) (A) Indebtedness owed by any Credit Party (other than the U.S. Borrower) to any U.S. Credit Party ( provided that such Indebtedness shall be payable by such Credit Party on demand by the applicable U.S. Credit Party) and (B) Indebtedness owed by any Canadian U.S. Credit Party to any Credit Party (provided that such Indebtedness shall be payable by such U.S. Credit Party (other than the U.S. Borrower) on demand by the applicable Credit Party);
(ii) Indebtedness owed by any Subsidiary which is not a U.S. Credit Party or a Credit Party to any other Canadian Subsidiary which is not a U.S. Credit Party or a Credit Party;
(iii) Indebtedness owed by any U.S. Credit Party or any Credit Party to a Subsidiary that is not a U.S. Credit Party or a Credit Party (provided that, if requested by the Canadian Administrative Agent, that such Indebtedness (other than Indebtedness existing as of the Closing Date pursuant to the Xxxxxxx-Xxxxxxx Arrangement) shall be subordinated to the Canadian U.S. Obligations on terms and conditions reasonably satisfactory the Obligations, as applicable, pursuant to the Canadian Administrative Agentan Intercompany Subordination Agreement);; and
Appears in 1 contract
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) (i) the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(c11.1(b));
(b) Indebtedness incurred in connection with a Hedging Agreement (i) with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent or (ii) required pursuant to Section 9.12; provided, that any counterparty that is a Lender shall be deemed reasonably satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Amended and Restated Closing Date and not otherwise permitted under this Section and listed on Schedule 7.1(u), and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(d) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured PartiesAdministrative Agent and the Lenders;
(be) Unsecured:
(i) the Canadian Obligations (excluding Hedging Obligations permitted pursuant Subordinated Indebtedness owed by any Credit Party to Section 10.1(c)) and another Credit Party,
(ii) Subordinated Indebtedness owed by any Credit Party to a Foreign Subsidiary,
(iii) Indebtedness owed by a Foreign Subsidiary to any Credit Party; provided that the Guaranty Obligations in favor aggregate amount of such Subordinated Indebtedness outstanding at any time pursuant to this clause (iii) shall not exceed the Foreign Investment Limitation (calculated without regard to clause (b) of the definition of Foreign Investment Limitation and excluding the Existing Canadian Administrative Agent for the benefit Note) as of any date of determination,
(iv) Indebtedness owed by a Foreign Subsidiary to another Foreign Subsidiary, and
(v) Subordinated Indebtedness consisting of promissory notes issued to current or former officers, directors and employees (or their estates, spouses or former spouses) of the Canadian Secured PartiesBorrower or any Subsidiary to purchase or redeem Capital Stock of the Borrower permitted by Section 11.6(d);
(cf) Indebtedness incurred in connection with a Hedging Agreement pursuant to the following clauses (i) which through (v) (and any extension, renewal, replacement or refinancing thereof, but not to increase the aggregate principal amount); provided that at the time such Indebtedness is entered into for interest rateincurred, foreign currency or other business purposes the Administrative Agent and not for speculative purposes the Lenders shall have received from the Borrower an Officer's Compliance Certificate in form and (ii) with a counterparty reasonably substance satisfactory to the Administrative Agent and the Canadian Administrative Agent; provided that any counterparty that is a Lender, a Canadian Lender or any Affiliate thereof shall be deemed satisfactory to the Administrative Agent and the Canadian Administrative Agent;
(d) Indebtedness existing on the Closing Date and not otherwise permitted under this Section and, to the extent that the outstanding principal amount of such Indebtedness is in excess of $25,000,000, listed on Schedule 10.1 (including any Indebtedness issued to refinance or to refund an Adjusted Consolidated EBITDA Reconciliation for the fiscal period covered by such Indebtedness or any Indebtedness which constitutes a renewal or extension of such IndebtednessOfficer's Compliance Certificate); provided that (i) the principal amount of such Indebtedness may not be increased at the time of such refinancing, refundingdemonstrating that, renewal or extension except (A) by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder and (B) by additional amounts, to the extent that the Consolidated Total Leverage Ratio, on a pro forma basis after giving effect to the incurrence of any such increaseIndebtedness, would the Borrower will be no greater than 5.50 to 1.00in pro forma compliance with the financial covenants set forth in Section 10.2, Section 10.3, Section 10.4 and Section 10.5 and demonstrating compliance with the Incurrence Test set forth in Section 10.1:
(iii) no Default or Event Indebtedness of Default exists and is continuing or would be caused by the refinancing, refunding, renewal or extension thereof, (iii) the Administrative Agent and the Canadian Administrative Agent shall have received satisfactory written evidence that the Borrower and its Subsidiaries would be in compliance with all covenants in this Agreement and the Canadian Credit Agreement on a pro forma basis after giving effect to the refinancing, refunding, renewal or extension thereof, (iv) the weighted average life of such Indebtedness shall not be shorter than the weighted average life of the Indebtedness being refinanced, refunded, renewed or extended, (v) any terms of subordination set forth in the Indebtedness being refinanced, refunded, renewed or extended are not adversely affected in any material respect and (vi) none of the Existing Notes nor any Indebtedness incurred in accordance with this paragraph to refinance, refund, renew or extend the Existing Notes shall be guaranteed by the Borrower or any of its Subsidiaries (other than (A) those Existing Notes which are guaranteed by the Borrower as of the Closing Date and identified on Schedule 10.1 as being so guaranteed and (B) any Indebtedness issued to refinance any Existing Notes which, as of the Closing Date, (1) have an outstanding principal balance in excess of $50,000,000 and (2) mature or are subject to mandatory redemption prior to the Maturity Date);
(e) Indebtedness incurred in connection with Capital Leases, including those Capital Leases existing on the Closing Date, and purchase money Indebtedness, including all and/or purchase money Indebtedness existing on of the Closing Date, Borrower and its Subsidiaries in an aggregate amount not to exceed $50,000,000 25,000,000 on any date of determination;
(fii) Indebtedness of a Person existing at the time such Person became a Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Subsidiary or the acquisition of such assets, not to exceed in the aggregate at any time outstanding $10,000,000;
(iii) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections subsection (c), (e), (h), (l) and (mf) of this Section Section;
(iv) Indebtedness of Foreign Subsidiaries, not to exceed in the aggregate at any time outstanding $2,000,000; provided that no Default or Event of Default shall have occurred and be continuing, or result therefrom, as of the date of incurrence of any Guaranty Obligations of such Indebtedness;
(v) additional unsecured Indebtedness incurred not otherwise permitted pursuant to subsection (h) or, to the extent applicable, subsection (m) of this Section in an aggregate amount outstanding not to exceed $200,000,000; provided that in the case of each issuance of such Indebtedness, (i) no Default or Event of Default shall have occurred and be subordinated to continuing or would be caused by the Obligations issuance of such Indebtedness and (ii) the Canadian Obligations to Borrower shall have complied with the same extent as the Indebtedness that is being guaranteedapplicable requirements of Section 4.4(b);
(g) Indebtedness incurred in respect of workers' compensation claims, self-insurance obligations, bankers' acceptances, performance, surety and similar bonds and completion guarantees provided by the Borrower or one of its Subsidiaries in the ordinary course of business;
(h) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument in the ordinary course of business inadvertently drawn against insufficient funds, provide however, that such Indebtedness is extinguished within five (5) Business Days; and
(i) (A) Indebtedness owed arising from any agreement by the Borrower or any of its Subsidiaries providing for indemnities, guarantees, purchase price adjustments, holdbacks, contingency payment obligations based on the performances of the acquired or disposed assets or similar obligations incurred by any Credit Party to any other Credit Party (provided that, if requested Person in connection with the acquisition or disposition of assets or Capital Stock as permitted by the Administrative Agent, such Indebtedness shall be subordinated to the Obligations on terms and conditions reasonably satisfactory to the Administrative Agent) and (B) Indebtedness owed by any Canadian Credit Party to any other Canadian Credit Party (provided that, if requested by the Canadian Administrative Agent, such Indebtedness shall be subordinated to the Canadian Obligations on terms and conditions reasonably satisfactory to the Canadian Administrative Agent);this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Globalstar, Inc.)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) (i) the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(c)) and (ii) the Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(b) (i) the Canadian U.S. Obligations (excluding any U.S. Obligations pursuant to Hedging Obligations Agreements permitted pursuant to Section 10.1(c)) and (ii) the Guaranty Obligations in respect of the U.S. Obligations in favor of the Canadian U.S. Administrative Agent for the benefit of the Canadian U.S. Secured Parties;
(c) Indebtedness incurred in connection with a Hedging Agreement (i) which is entered into for interest rate, foreign currency or other business purposes and not for speculative purposes and (ii) with a counterparty reasonably satisfactory to the Administrative Agent and the Canadian U.S. Administrative Agent; provided that any counterparty that is a Lender, a Canadian U.S. Lender or any Affiliate thereof shall be deemed satisfactory to the Administrative Agent and the Canadian U.S. Administrative Agent;
(d) Indebtedness existing on the Closing Date and not otherwise permitted under this Section and, to the extent that the outstanding principal amount of such Indebtedness is in excess of $25,000,000, listed on Schedule 10.1 (including any Indebtedness (including, without limitation, any Guaranty Obligation of Indebtedness of another Person but excluding the April 2008 Convertible Indebtedness) issued to refinance or to refund such Indebtedness or any Indebtedness which constitutes a renewal or extension of such Indebtedness); provided that (i) the principal amount of such Indebtedness may not be increased at the time of such refinancing, refunding, renewal or extension except (A) by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing, refunding, renewal or extension and by an amount equal to any existing -- commitments unutilized thereunder and (B) by additional amounts, to the extent that the Consolidated Total Leverage Ratio, on a pro forma basis after giving effect to such increase, would be no greater than 5.50 to 1.00, (ii) no Default or Event of Default exists and is continuing or would be caused by the refinancing, refunding, renewal or extension thereof, (iii) the Administrative Agent and the Canadian U.S. Administrative Agent shall have received satisfactory written evidence that the U.S. Borrower and its Subsidiaries would be in compliance with all covenants in this Agreement and the Canadian U.S. Credit Agreement on a pro forma basis after giving effect to the refinancing, refunding, renewal or extension thereof, (iv) the weighted average life of such Indebtedness shall not be shorter than the weighted average life of the Indebtedness being refinanced, refunded, renewed or extended, (v) any terms of subordination set forth in the Indebtedness being refinanced, refunded, renewed or extended are not adversely affected in any material respect respect, (vi) if the Indebtedness being refinanced is not secured by the assets of any Credit Party or its Subsidiaries or any U.S. Credit Party or its Subsidiaries, such refinancing Indebtedness shall also not be secured by the assets of any Credit Party or its Subsidiaries or any U.S. Credit Party or its Subsidiaries and (vivii) none of the Existing Notes nor any Indebtedness incurred in accordance with this paragraph to refinance, refund, renew or extend the Existing Notes shall be guaranteed by the U.S. Borrower or any of its Subsidiaries (other than (A) those Existing Notes which are guaranteed by the U.S. Borrower as of the Closing Date and identified on Schedule 10.1 as being so guaranteed and (B) any Indebtedness issued to refinance any Existing Notes which, as of the Closing Date, (1) have an outstanding principal balance in excess of $50,000,000 and (2) mature or are subject to mandatory redemption prior to the U.S. Maturity Date);
(e) Indebtedness incurred in connection with Capital Leases, including those Capital Leases existing on the Closing Date, and purchase money Indebtedness, including all purchase money Indebtedness existing on the Closing Date, in an aggregate amount not to exceed $50,000,000 on any date of determination;
(fi) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (c), (e), (h), (l), (m) and (mn) of this Section (provided that any Guaranty Obligations of Indebtedness incurred pursuant to subsection (h) or, to the extent applicable, subsection (m) of n)of this Section shall be subordinated to the Obligations and the Canadian U.S. Obligations to the same extent as the Indebtedness that is being guaranteed); or
(ii) Guaranty Obligations of the Original U.S. Borrower with respect to the April 2008 Convertible Indebtedness; provided that (A) the Original U.S. Borrower shall not be permitted to create, incur, assume or suffer to exist such Guaranty Obligations unless (1) it shall have delivered to the U.S. Administrative Agent evidence, in form and substance reasonably satisfactory to the U.S. Administrative Agent, that the Abitibi Entities shall have consummated (or will concurrently consummate) their previously announced financing plan which will consist of the following: (x) $250,000,000 to $325,000,000 of new senior unsecured exchange notes of Abitibi, (y) $350,000,000 to $450,000,000 of new 364-day term loans of Abitibi and (z) approximately $400,000,000 of new senior secured notes or a term loan of Abitibi not to exceed a five year term (provided that Abitibi may replace or amend the financings described in this clause (A)(1) above so long as such replacement or amendment consists of non-convertible debt financings of Abitibi that are not guaranteed by, or secured by the assets of, the U.S. -- Borrower or any of its Subsidiaries and would not reduce the aggregate amount of proceeds reflected above in this clause (A) in excess of $50,000,000) or (2) the proceeds of such Indebtedness are used to permanently reduce, on a pro rata basis, the Commitment under this Agreement and the U.S. Commitment and to permanently repay, on a pro rata basis, Extensions of Credit under this Agreement and U.S. Extensions of Credit under the U.S. Credit Agreement or for such other use approved in writing by the Required Lenders (it being understood that any use that involves the reduction of the commitments or repayment of the extensions of credit under this Credit Facility or the U.S. Credit Facility shall continue to be applied to this Credit Facility and the U.S. Credit Facility on a pro rata basis unless otherwise agreed to by the Required Agreement Lenders and the U.S. Required Agreement Lenders); and (B) such Guaranty Obligations shall be unsecured and shall not exceed $350,000,000 in an aggregate principal amount (plus any paid-in-kind interest thereon) on any date of determination;
(g) (i) (A) Indebtedness owed by any U.S. Credit Party to any other U.S. Credit Party, including, without limitation, Indebtedness evidenced by the New U.S. Borrower Notes (provided that, if requested by the U.S. Administrative Agent, such Indebtedness shall be subordinated to the U.S. Obligations on terms and conditions reasonably satisfactory to the U.S. Administrative Agent) and (B) Indebtedness owed by any Credit Party (other than the U.S. Borrower) to any other Credit Party (other than the U.S. Borrower) (provided that, if requested by the Administrative Agent, such Indebtedness shall be subordinated to the Obligations on terms and conditions reasonably satisfactory to the Administrative Agent);
(i) (A) Indebtedness owed by any Credit Party (other than the U.S. Borrower) to any U.S. Credit Party (provided that such Indebtedness shall be payable by such Credit Party on demand by the applicable U.S. Credit Party) and (B) Indebtedness owed by any Canadian U.S. Credit Party to any Credit Party (provided that such Indebtedness shall be payable by such U.S. Credit Party (other than the U.S. Borrower) on demand by the applicable Credit Party);
(ii) Indebtedness owed by any Subsidiary which is not a U.S. Credit Party or a Credit Party to any other Canadian Subsidiary which is not a U.S. Credit Party or a Credit Party;
(iii) Indebtedness owed by any U.S. Credit Party or any Credit Party to a Subsidiary that is not a U.S. Credit Party or a Credit Party (provided that, if requested by the Canadian Administrative Agent, that such Indebtedness (other than Indebtedness existing as of the Closing Date pursuant to the Xxxxxxx-Xxxxxxx Arrangement) shall be subordinated to the Canadian U.S. Obligations on terms and conditions reasonably satisfactory the Obligations, as applicable, pursuant to the Canadian Administrative Agentan Intercompany Subordination Agreement);; and
Appears in 1 contract
Samples: Credit Agreement (Bowater Inc)
