Subsidiary Indebtedness The Credit Parties will not permit any of the Restricted Subsidiaries (other than the Credit Parties (except as set forth in Section 6.3(c)(ii)) and the Pro Rata Additional Borrowers) to create, incur, assume or suffer to exist any Indebtedness except:
(A) Indebtedness existing as of the Closing Date under industrial development bonds and Indebtedness of Foreign Subsidiaries in an aggregate amount not to exceed $325,000,000 and (B) Refinancing Indebtedness in respect of Indebtedness incurred under clause (A) above;
(b) Indebtedness of any Restricted Subsidiary owing to a Credit Party or any Restricted Subsidiary;
(c) other Indebtedness (whether secured or unsecured); provided that (i) at the time of incurrence of any Indebtedness under this subsection (c), the aggregate principal amount of such Indebtedness does not exceed the Priority Debt Basket at such time (determined prior to giving effect to the incurrence of such Indebtedness) and (ii) for the avoidance of doubt, any Indebtedness under this Agreement shall be considered Indebtedness incurred pursuant to this clause (c);
(d) Indebtedness and obligations owing under Hedging Agreements and/or Cash Management Agreements so long as such Hedging Agreements and/or Cash Management Agreements are not entered into for speculative purposes;
(e) Guaranty Obligations of any Restricted Subsidiary in respect of Indebtedness of the Parent or any other Restricted Subsidiary to the extent such Indebtedness is permitted to exist or be incurred pursuant to this Section 6.3;
(f) obligations of any Restricted Subsidiary in connection with (i) any Permitted Securitization Transaction, to the extent such obligations constitute Indebtedness and (ii) any inventory financing arrangements so long as the aggregate principal amount Indebtedness in respect thereof incurred under this subsection(f)(ii) does not exceed $250,000,000 at any time outstanding;
(g) Indebtedness of any Restricted Subsidiary consisting of completion guarantees, performance bonds, surety bonds or customs bonds incurred in the ordinary course of business;
(h) Indebtedness owed to any Person (including obligations in respect of letters of credit, bank guarantees and similar instruments for the benefit of such Person) providing workers’ compensation, social security, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(i) Indebtedness owed in respect of any overdrafts and related liabilities arising from treasury, depositary and cash management services or in connection with any automated clearinghouse transfers of funds; provided that such Indebtedness shall be repaid in full within five Business Days of the incurrence thereof;
(j) Indebtedness in respect of judgments that do not constitute an Event of Default under Section 7.1(i);
(k) Indebtedness consisting of the financing of insurance premiums with the providers of such insurance or their Affiliates; and
(l) Indebtedness created under this Agreement or any other Credit Document.
Company Indebtedness The Company shall, and shall cause its Subsidiaries to, timely deliver all notices and take all other administrative actions required to facilitate (i) the termination of commitments, repayment in full of all outstanding loans or other obligations, release of any Liens securing such loans or obligations and guarantees in connection therewith, and replacement of or cash collateralization of any issued letters of credit in respect of the Credit Facility on or before the Closing Date and (ii) to the extent reasonably requested in writing by Parent, no later than ten (10) Business Days prior to the Closing Date with respect to any Indebtedness (other than Indebtedness in respect of the Credit Facility) incurred by the Company or any of its Subsidiaries after the date hereof in compliance with Section 6.1(b)(xi) (it being understood that the Company shall promptly and in any event no later than fifteen (15) Business Days prior to the Closing Date notify Parent in writing of the amount of any such Indebtedness incurred or to be incurred and expected to be outstanding on the Closing Date), repayment in full of all obligations in respect of such Indebtedness and release of any Liens securing such Indebtedness and guarantees in connection therewith, in each case, on the Closing Date. In furtherance and not in limitation of the foregoing, the Company and its Subsidiaries shall use reasonable best efforts to deliver to Parent no later than one (1) Business Day prior to the Closing Date payoff letters with respect to the Company Credit Facility and, to the extent reasonably requested by Parent in writing no later than ten (10) Business Days prior to the Closing Date, any Indebtedness incurred by any of the Company and its Subsidiaries after the date hereof in compliance with Section 6.1(b)(xi) (each, a “Payoff Letter”) in form and substance customary for transactions of this type, from the persons, or the applicable agent on behalf of the persons, to which such Indebtedness is owed, which Payoff Letters together with any related release documentation shall, among other things, include the payoff amount and provide for Liens (and guarantees), if any, granted in connection therewith relating to the assets, rights and properties of the Company and its Subsidiaries securing such Indebtedness and any other obligations secured thereby, upon the payment of the amount set forth in the applicable Payoff Letter on or prior to the Closing Date, to be released and terminated. Upon at least ten (10) days’ prior written notice from the Company that the Company has determined, after reasonable consultation with Parent, that it will not at the time of the Real Estate Purchase (and without giving effect to the payment of the Real Estate Purchase Price or any other payment under this Agreement) have sufficient unencumbered and available cash, net of “cage cash”, cash on hand required by any Governmental Entity, the reasonably estimated additional amount of cash necessary to ensure the sound operation of the Company’s business consistent with past practice, and any other restricted cash, to pay in full the outstanding Indebtedness in respect of the Credit Facility, then to the extent of such shortfall Parent will extend an unsecured loan to the Company on the day of the Closing so that, together with such net unencumbered and available cash, the proceeds of such loan are sufficient to pay in full the outstanding Indebtedness in respect of the Credit Facility as may be necessary to release all Liens and obligations in respect thereof at the time of, or immediately prior to, the Real Estate Purchase, and the terms of such loan shall be reasonable for the circumstance as negotiated in good faith by Parent and the Company.
Indebtedness of Subsidiaries The Company will not at any time permit any Subsidiary, directly or indirectly, to create, incur, assume, guarantee, have outstanding, or otherwise become or remain directly or indirectly liable for, any Indebtedness other than:
(a) Indebtedness of a Subsidiary outstanding on the Closing Date and listed on Schedule 5.15 and any extension, renewal or refunding thereof, provided that the principal amount outstanding at the time of such extension, renewal or refunding is not increased;
(b) Indebtedness of (a) any Subsidiary to any Wholly-Owned Subsidiary, (b) the Company or any Co-Obligor to any Wholly-Owned Subsidiary, (c) Lxxxxxx Finance Company B.V. to any Subsidiary (other than any Subsidiary Guarantor) in an aggregate outstanding principal amount not to exceed $50,000,000 at any time and (d) any one or more Co-Obligors to Hxxxxx CBI, Limited in the aggregate outstanding principal amount not to exceed $100,000,000; provided, that if either the Company or any Co-Obligor is the obligor on such Indebtedness, such Indebtedness may only be due either the Company or a Co-Obligor and shall be expressly subordinate to the payment in full in cash of the Credit Obligations on terms reasonably satisfactory to the Administrative Agent;
(c) guaranties by a Subsidiary Guarantor of Indebtedness of the Company;
(d) Indebtedness under the Credit Agreement outstanding from time to time;
(e) Indebtedness under the Existing Note Purchase Agreement outstanding from time to time;
(f) Indebtedness with respect to the Hedging Arrangements pursuant to which the Company or any Subsidiary has hedged its reasonably estimated interest rate, foreign currency or commodity exposure, and which are non-speculative in nature;
(g) Indebtedness under the LOC Agreements and guaranties thereof by the Subsidiary Guarantors;
(i) recourse obligations resulting from endorsement of negotiable instruments for collection in the ordinary course of business; (ii) Contingent Obligations of the Company and its Subsidiaries identified as such on Schedule 7.11(h) to this Agreement; (iii) Contingent Obligations (x) incurred by any Subsidiary of the Company to support the performance of bids, tenders, sales, contracts (other than for the repayment of borrowed money) of any other Subsidiary of the Company in the ordinary course of business, (y) incurred by any Subsidiary of the Company under the Credit Agreement, or (z) with respect to surety, appeal and performance bonds and Performance Letters of Credit obtained by the Company or any Subsidiary in the ordinary course of business; and (iv) Contingent Obligations of the Subsidiary Guarantors under the Subsidiary Guaranty; and
(i) Indebtedness of a Subsidiary not otherwise permitted by the preceding clauses (a) through (g), provided that immediately before and after giving effect to the incurrence thereof and to the application of the proceeds thereof,
(i) no Default or Event of Default exists, and
(ii) the aggregate amount of all Indebtedness incurred pursuant to this Section 7.11(h) does not exceed 20% of Consolidated Net Worth.
Affiliate Use Affiliates’ Use of the Software, Documentation and other SAP Materials to run their internal business operations as permitted under Section 2.1.1 is subject to the following: (i) Licensee ensures that the Affiliate agrees in writing to comply with the terms of this Agreement; and (ii) a breach of the Agreement terms by Affiliate shall be considered a breach by Licensee hereunder. If Licensee has an affiliate or subsidiary with a separate license or support agreement for SAP software with any member of the SAP Group or any other distributor of SAP software, the Software shall not be Used to run such affiliate’s or subsidiary’s business operations even if such separate agreement has expired or is terminated, unless otherwise agreed to in writing by the parties.
Affiliate Transactions Except as permitted by Section 9.8. or as otherwise set forth on Schedule 6.1.(s), none of the Borrower, any other Loan Party or any other Subsidiary is a party to or bound by any agreement or arrangement with any Affiliate.
Affiliate Contracts Except for the contracts set forth on Schedule 6 attached hereto, the Borrower has not entered into any Contractual Obligation, lease or other agreement with any Person that directly or indirectly controls, is controlled by, or is under common control with, the Borrower for the provision of any service, materials or supplies to any Mortgaged Property (including, without limitation, any contract, Lease or agreement for the provision of property management services, cable television services or equipment, gas, electric or other utilities, security services or equipment, parking services, laundry services or equipment or telephone services or equipment).
Ventures, Subsidiaries and Affiliates; Outstanding Stock and Indebtedness Except as set forth in Disclosure Schedule (3.8), as of the Closing Date, no Credit Party has any Subsidiaries, is engaged in any joint venture or partnership with any other Person, or is an Affiliate of any other Person. All of the issued and outstanding Stock of each Credit Party is owned by each of the Stockholders and in the amounts set forth in Disclosure Schedule (3.8). Except as set forth in Disclosure Schedule (3.8), there are no outstanding rights to purchase, options, warrants or similar rights or agreements pursuant to which any Credit Party may be required to issue, sell, repurchase or redeem any of its Stock or other equity securities or any Stock or other equity securities of its Subsidiaries. All outstanding Indebtedness and Guaranteed Indebtedness of each Credit Party as of the Closing Date (except for the Obligations) is described in Section 6.3 (including Disclosure Schedule (6.3)).
Control and Payment of Subordinates; Independent Contractor The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee. Consultant retains the right to perform similar or different services for others during the Term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant’s exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.
Subsidiary Debt Permit any of its Subsidiaries (other than any Loan Party) to create or suffer to exist, any Debt other than:
(i) Debt existing on the Execution Date and disclosed to the Lenders prior to the date hereof (the “Existing Debt”), and any Debt extending the maturity of, or refunding, renewing or refinancing, in whole or in part, the Existing Debt; provided, that the principal amount of such Existing Debt shall not be increased above the principal amount thereof outstanding immediately prior to such extension, refunding, renewal or refinancing (other than by an amount equal to the premium thereon, plus other reasonable amounts paid, and fees and expenses incurred in connection with such extension, refunding, renewal or refinancing), and the direct and contingent obligors therefor shall not be increased, as a result of or in connection with such extension, refunding, renewal or refinancing;
(ii) Debt of any Person that becomes a Subsidiary after the date hereof, and extensions, refundings, renewals and refinancings of any such Debt that do not increase the outstanding principal amount thereof (other than by an amount equal to the premium thereon, plus other reasonable amounts paid, fees and expenses incurred in connection with such extension, refunding, renewal or refinancing); provided, that such Debt exists at the time such Person becomes a Subsidiary of such Loan Party and is not created in contemplation of or in connection with such Person becoming a Subsidiary of such Loan Party;
(iii) Debt secured by Liens of the type described in and to the extent permitted by Section 5.02(a)(iv) through (ix);
(iv) Debt in an aggregate outstanding principal amount at any time not exceeding $500.0 million;
(v) other Debt (whether secured or unsecured) to the extent the aggregate principal amount of such Debt together with Debt secured by Liens permitted under Section 5.02(a)(iii) does not exceed an amount equal to the greater of (x) $750.0 million and (y) 10% of Consolidated Tangible Assets of the Reporting Group;
(vi) Debt of any Subsidiary to the Borrower or any Subsidiary thereof; and
(vii) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business. Notwithstanding anything to the contrary set forth above, if any Debt is denominated in a foreign currency, no fluctuation in currency values shall result in a breach of this Section 5.02(e).
Affiliate Letters Each Shareholder agrees to execute an affiliate agreement, as soon as practicable after the date hereof, in substantially the form attached as Exhibit 7.10 to the Merger Agreement.
