Permitted Debt. Create, incur, guarantee or suffer to exist any Debt, except Debt incurred or arising pursuant to clauses (a) through (x) below (provided, that, in the case of any such Debt incurred or arising at any time on or after the Petition Date, such Debt shall only be permitted hereunder if no Default or Event of Default shall exist or be continuing as of the time that such Debt is to be incurred or to arise, or shall occur upon, or as a result of, such Debt being incurred or arising): (a) the Obligations; (b) the Prepetition NPA Facility Debt; (c) any (i) Debt incurred to finance the acquisition, construction, or improvement of any fixed or capital assets (whether or not constituting Purchase Money Debt), including Capital Lease Obligations and (ii) Debt assumed in connection with the acquisition of any of the foregoing assets or secured by a Lien on any such assets prior to the acquisition thereof; provided, that no Debt shall be incurred pursuant hereto at any time after the Petition Date unless permitted pursuant to the applicable Chapter 11 Approvals, and no payments in respect thereof shall be made except to the extent in accordance with the Financial Covenants; and provided, further, that the aggregate principal amount of Debt incurred in reliance on this clause (c) after the Petition Date and the creditor payments related thereto are set forth in, and made pursuant to and in accordance with, the Approved Budget; (d) Debt incurred prior to the Petition Date; provided, that if any such Debt exceeds an aggregate principal amount of $100,000, a description of such Debt is set forth on Schedule 10.2.1 hereof; (e) Debt with respect to Debt in respect of netting services, automatic clearinghouse arrangements, overdraft protections, treasury, depository, corporate purchasing cards and other credit cards, cash management, and similar arrangements, in each case incurred in the Ordinary Course of Business; (f) [reserved]; (g) Permitted Contingent Obligations; (h) intercompany Debt solely among the Obligors; provided, that any such Debt shall be subordinated on terms reasonably satisfactory to the Administrative Agent to the Obligations hereunder (including pursuant to the terms of the Intercompany Subordination Agreement); (i) Debt incurred in connection with the financing of insurance premiums in the Ordinary Course of Business; (j) Debt owed to any Person providing workers’ compensation, unemployment insurance, 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; (k) Debt in respect of performance bonds, completion guarantees, bid bonds, appeal bonds, surety bonds and similar obligations, in each case provided in the Ordinary Course of Business; (l) [reserved]; (m) [reserved]; (n) [reserved]; (o) preferred stock of Borrower issued prior to the Petition Date and that does not constitute Disqualified Equity Interests, as set forth on Schedule 9.1.4; (p) Debt consisting of take or pay obligations contained in supply arrangements entered into in the Ordinary Course of Business; provided, that the aggregate amount of all such obligations incurred or arising and outstanding at any time shall not exceed $500,000; provided, further, that no such obligations shall be incurred at any time as of the Petition Date unless permitted by the DIP Orders or other Chapter 11 Order (in each case, in accordance with the Approved Budget); (q) guarantees required by Governmental Authorities in the Ordinary Course of Business; (r) [reserved]; (s) Debt arising under Permitted Employment Arrangements in accordance with the Approved Budget, all of which Debt (other than to the extent relating to XXXX/KERP payments approved by the Bankruptcy Court) shall be subordinated on terms acceptable to the Administrative Agent to the Full Payment of the Obligations; (t) endorsements for collection, deposit, or negotiation and warranties of products or services, in each case incurred in the Ordinary Course of Business; (u) rental obligations incurred in the Ordinary Course of Business; provided, that the aggregate amount thereof incurred or arising at any time following the Petition Date shall not exceed $1,500,000 unless previously approved in writing by the Administrative Agent; (v) [reserved]; (w) trade payables and other current liabilities incurred in the Ordinary Course of Business and in accordance with the Approved Budget; (x) all interest accruing on (including capitalized interest), and all reasonable and documented fees and expenses payable in connection with, the obligations described in the foregoing clauses (in the case of (1) clause (a) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Obligations or as provided elsewhere in this Agreement and (2) clause (b) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Prepetition April NPA Debt or Prepetition August NPA Debt)); and (y) to the extent constituting Debt, obligations under Permitted BTC Hedging Agreement. Notwithstanding anything to the contrary in this Section 10.2.1, no payment shall be made in respect of any Debt (whether or not such Debt is permitted hereunder) at any time after the Interim DIP Closing Date except in accordance with the Approved Budget.
Appears in 2 contracts
Samples: Senior Secured Super Priority Debtor in Possession Loan and Security Agreement (Core Scientific, Inc./Tx), Loan and Security Agreement (Core Scientific, Inc./Tx)
Permitted Debt. Create, incur, guarantee or suffer to exist any Debt, except Debt incurred or arising pursuant to clauses (a) through (x) below (provided, that, in the case of any such Debt incurred or arising at any time on or after the Petition Date, such Debt shall only be permitted hereunder if no Default or Event of Default shall exist or be continuing as of the time that such Debt is to be incurred or to arise, or shall occur upon, or as a result of, such Debt being incurred or arising):except:
(a) the Obligations;
(b) the Prepetition NPA Facility Subordinated Debt;
(c) any (i) Debt incurred to finance the acquisition, construction, or improvement of any fixed or capital assets (whether or not constituting Permitted Purchase Money Debt), including Capital Lease Obligations and (ii) Debt assumed in connection with the acquisition of any of the foregoing assets or secured by a Lien on any such assets prior to the acquisition thereof; provided, that no Debt shall be incurred pursuant hereto at any time after the Petition Date unless permitted pursuant to the applicable Chapter 11 Approvals, and no payments in respect thereof shall be made except to the extent in accordance with the Financial Covenants; and provided, further, that the aggregate principal amount of Debt incurred in reliance on this clause (c) after the Petition Date and the creditor payments related thereto are set forth in, and made pursuant to and in accordance with, the Approved Budget;
(d) Debt incurred prior to the Petition Date; provided, that if any such Debt exceeds an aggregate principal amount of $100,000, a description of such Debt is Borrowed Money set forth on Schedule 10.2.1 hereof;10.2.1, but only to the extent outstanding on the RestatementSecond Amendment Effective Date
(e) Debt with respect to Debt in respect of netting services, automatic clearinghouse arrangements, overdraft protections, treasury, depository, corporate purchasing cards and other credit cards, cash management, and similar arrangements, in each case Bank Products incurred in the Ordinary Course of Business;
(f) [reserved]Debt in respect of Hedging Agreements entered into in the Ordinary Course of Business and not for speculative purposes;
(g) Permitted Contingent Obligations;
(h) intercompany Refinancing Debt solely among the Obligors; provided, that any such Debt shall be subordinated on terms reasonably satisfactory to the Administrative Agent to the Obligations hereunder (including pursuant to the terms of the Intercompany Subordination Agreement)as long as each Refinancing Condition is satisfied;
(i) intercompany Debt extended by UK Borrower to any other Obligor or by US Borrower to any other Obligor which is not a Foreign Subsidiary;
(j) Debt incurred in connection with the financing of insurance premiums in the Ordinary Course of Businesspremiums;
(jk) Debt owed to any Person providing workers’ compensation, unemployment insurance, 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;
(kl) Contingent Obligations by any Obligor of Debt of any other Obligor that was permitted to be incurred under another clause of this Section 10.2.1;
(m) Debt arising from agreements providing for indemnification, adjustment of purchase price, earnout or other similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business, assets or a Subsidiary, other than guarantees of Debt incurred by any Person acquiring all or any portion of such business, assets or Subsidiary for the purpose of financing such acquisition; provided that, except for the Permitted Earnout Payment, Debt arising with respect to earnout or other similar obligations permitted pursuant to this clause (m) shall be Subordinated Debt and shall not exceed $3,000,000 at any time outstanding;
(n) Debt in respect of performance bonds, completion guarantees, bid bonds, appeal bonds, surety bonds and similar obligations, in each case provided in the Ordinary Course of Business;
(l) [reserved];
(m) [reserved];
(n) [reserved];
(o) preferred stock of Borrower issued prior to the Petition Date and that does not constitute Disqualified Equity Interests, as set forth on Schedule 9.1.4;
(p) Debt consisting of take or pay obligations contained in supply arrangements entered into in the Ordinary Course of Business; provided, that the aggregate amount of all such obligations incurred or arising and outstanding at any time shall not exceed $500,000; provided, further, that no such obligations shall be incurred at any time as of the Petition Date unless permitted by the DIP Orders or other Chapter 11 Order (in each case, in accordance with the Approved Budget);
(q) guarantees required by Governmental Authorities in the Ordinary Course of Business;
(r) [reserved];
(s) Debt arising under Permitted Employment Arrangements in accordance with the Approved Budget, all of which Debt (other than to the extent relating to XXXX/KERP payments approved by the Bankruptcy Court) shall be subordinated on terms acceptable to the Administrative Agent to the Full Payment of the Obligations;
(t) endorsements for collection, deposit, or negotiation and warranties of products or services, in each case incurred in the Ordinary Course of Business;
(u) rental obligations incurred in the Ordinary Course of Business; provided, that the aggregate amount thereof incurred or arising at any time following the Petition Date shall not exceed $1,500,000 unless previously approved in writing by the Administrative Agent;
(v) [reserved];
(w) trade payables and other current liabilities incurred in the Ordinary Course of Business and in accordance with the Approved Budget;
(x) all interest accruing on (including capitalized interest), and all reasonable and documented fees and expenses payable in connection with, the obligations described in the foregoing clauses (in the case of (1) clause (a) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Obligations or as provided elsewhere in this Agreement and (2) clause (b) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Prepetition April NPA Debt or Prepetition August NPA Debt)); and
(y) to the extent constituting Debt, obligations under Permitted BTC Hedging Agreement. Notwithstanding anything to the contrary in this Section 10.2.1, no payment shall be made in respect of any Debt (whether or not such Debt is permitted hereunder) at any time after the Interim DIP Closing Date except in accordance with the Approved Budget.
Appears in 1 contract
Samples: Loan, Guaranty and Security Agreement (Turtle Beach Corp)
Permitted Debt. Create, incur, guarantee or suffer to exist any Debt, except Debt incurred or arising pursuant to clauses (a) through (x) below (provided, that, in the case of any such Debt incurred or arising at any time on or after the Petition Date, such Debt shall only be permitted hereunder if no Default or Event of Default shall exist or be continuing as of the time that such Debt is to be incurred or to arise, or shall occur upon, or as a result of, such Debt being incurred or arising):except:
(a) the Obligations;
(b) the Prepetition NPA Facility Revolving Loan Debt;
(c) the Quebec Subordinated Debt in an outstanding amount not to exceed Cdn. $12,000,000 at any time and solely to the extent that such Debt is subject to the Quebec Subordination Agreements; provided that (i) the Quebec Subordinated Debt incurred Documents shall be in form and substance reasonably satisfactory to finance the acquisitionAgents, construction, or improvement of any fixed or capital assets (whether or not constituting Purchase Money Debt), including Capital Lease Obligations and (ii) Debt assumed in connection with the acquisition of any of the foregoing assets or secured by a Lien on any such assets prior to the acquisition thereof; provided, that no Quebec Subordinated Debt shall be incurred pursuant hereto at any time after the Petition Date unless permitted pursuant subject to the applicable Chapter 11 Approvals, and no payments in respect thereof shall be made except to the extent in accordance with the Financial Covenants; and provided, further, that the aggregate principal amount of Debt incurred in reliance on this clause (c) after the Petition Date and the creditor payments related thereto are set forth in, and made pursuant to and in accordance with, the Approved BudgetQuebec Subordination Agreements;
(d) Debt incurred prior to the Petition Date; provided, that if any such Debt exceeds an aggregate principal amount of $100,000, a description of such Debt is set forth on Schedule 10.2.1 hereofIntercompany Debt;
(e) Debt with respect to Debt in respect of netting services, automatic clearinghouse arrangements, overdraft protections, treasury, depository, corporate purchasing cards and other credit cards, cash management, and similar arrangements, in each case incurred in the Ordinary Course of Business;
(f) [reserved];
(g) Permitted Contingent Obligations;
(h) intercompany Debt solely among the Obligors; provided, that any such Debt shall be subordinated on terms reasonably satisfactory to the Administrative Agent to the Obligations hereunder (including pursuant to the terms of the Intercompany Subordination Agreement);
(i) Debt incurred in connection with the financing of insurance premiums in the Ordinary Course of Business;
(j) Debt owed to any Person providing workers’ compensation, unemployment insurance, 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;
(k) Debt in respect of performance bonds, completion guarantees, bid bonds, appeal bonds, surety bonds and similar obligations, in each case provided in the Ordinary Course of Business;
(l) [reserved];
(m) [reserved];
(n) [reserved];
(o) preferred stock of Borrower issued prior to the Petition Date and that does not constitute Disqualified Equity Interests, as set forth on Schedule 9.1.4;
(p) Debt consisting of take or pay obligations contained in supply arrangements entered into in the Ordinary Course of Business; provided, that the aggregate amount of all such obligations incurred or arising and outstanding at any time shall not exceed $500,000; provided, further, that no such obligations shall be incurred at any time as of the Petition Date unless permitted by the DIP Orders or other Chapter 11 Order (in each case, in accordance with the Approved Budget);
(q) guarantees required by Governmental Authorities in the Ordinary Course of Business;
(r) [reserved];
(s) Debt arising under Permitted Employment Arrangements in accordance with the Approved Budget, all of which Debt (other than to the extent relating to XXXX/KERP payments approved by the Bankruptcy Court) shall be subordinated on terms acceptable to the Administrative Agent to the Full Payment of the Obligations;
(t) endorsements for collection, deposit, deposit or negotiation and warranties of products or services, in each case incurred in the Ordinary Course of Business;
(uf) rental obligations Debt described in Schedule 10.2.1, but not any extensions, renewals or replacements of such Debt except (i) renewals and extensions expressly provided for in the agreements evidencing any such Debt as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Debt if the terms and conditions thereof are not materially less favorable (taken as a whole) to the obligor thereon or to the Lenders than the Debt being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Debt being refinanced or extended; provided that such Debt permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Debt of an obligor that was not an obligor with respect to the Debt being extended, renewed or refinanced, (B) exceed in a principal amount the Debt being renewed, extended or refinanced, except by an amount equal to a premium on or other amount paid and fees and expenses reasonably incurred in connection with such renewal, extension or refinancing or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(g) Debt incurred in connection with the Ordinary Course acquisition, lease or leasing after the Effective Date of Businessany equipment or fixtures by a Loan Party or under any Capital Lease, provided that the aggregate principal amount of such Debt of the Loan Parties shall not exceed the Dollar Equivalent of $15,000,000 at any one time;
(h) Reserved;
(i) Reserved;
(j) such other unsecured Debt that is expressly subordinated to the Full Payment of the Obligations on terms and conditions and pursuant to a subordination agreement acceptable to the Agents; provided, provided that the aggregate principal amount of such Debt of the Loan Parties shall not exceed the Dollar Equivalent of $15,000,000 at any time;
(k) unsecured Debt constituting the Management Debt to the extent subject to the Management Subordination Agreement;
(l) such other Additional Subordinated Debt of the Loan Parties; provided that the aggregate principal amount of such Additional Subordinated Debt of the Loan Parties shall not exceed the Dollar Equivalent of $15,000,000 at any one time; and
(m) the Xxxxxxx Debt of the Loan Parties; provided that the aggregate amount thereof incurred or arising at any time following of such Xxxxxxx Debt of the Petition Date Loan Parties shall not exceed the Dollar Equivalent of $1,500,000 unless previously approved in writing by the Administrative Agent;
(v) [reserved];
(w) trade payables and other current liabilities incurred in the Ordinary Course of Business and in accordance with the Approved Budget;
(x) all interest accruing on (including capitalized interest), and all reasonable and documented fees and expenses payable in connection with, the obligations described in the foregoing clauses (in the case of (1) clause (a) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Obligations or as provided elsewhere in this Agreement and (2) clause (b) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Prepetition April NPA Debt or Prepetition August NPA Debt)); and
(y) to the extent constituting Debt, obligations under Permitted BTC Hedging Agreement. Notwithstanding anything to the contrary in this Section 10.2.1, no payment shall be made in respect of any Debt (whether or not such Debt is permitted hereunder) 10,600,000 at any time after the Interim DIP Closing Date except in accordance with the Approved Budgetone time.
Appears in 1 contract
Samples: Term Loan and Security Agreement (Birks & Mayors Inc.)
Permitted Debt. Create, incur, guarantee or suffer to exist any Debt, except Debt incurred or arising pursuant to clauses (a) through (x) below (provided, that, in the case of any such Debt incurred or arising at any time on or after as of the Petition Date, such Debt shall only be permitted hereunder if no Default or Event of Default shall exist or be continuing as of the time that such Debt is to be incurred or to arise, or shall occur upon, or as a result of, such Debt being incurred or arising):
(a) the Obligations;
(b) the Prepetition NPA Facility Debt;
(c) any (i) Debt incurred to finance the acquisition, construction, or improvement of any fixed or capital assets (whether or not constituting Purchase Money Debt), including Capital Lease Obligations Obligations; provided, that no Debt shall be incurred pursuant hereto at any time as of the Petition Date unless permitted pursuant to the applicable Chapter 11 Approvals, and no payments in respect thereof shall be made except to the extent in accordance with the Financial Covenant, and (ii) Debt assumed in connection with the acquisition of any of the foregoing assets or secured by a Lien on any such assets prior to the acquisition thereof; provided, that no Debt shall be incurred pursuant hereto at any time after the Petition Date unless permitted pursuant to the applicable Chapter 11 Approvals, and no payments in respect thereof shall be made except to the extent in accordance with the Financial Covenants; and provided, further, that the aggregate principal amount of Debt incurred in reliance on this clause (c) after the Petition Closing Date shall not exceed $5,000,000 at any time outstanding and the creditor payments related thereto are set forth in, and made pursuant to and in accordance withto, the Approved Budget;
(d) Debt incurred prior to the Petition Date; provided, that if any such Debt exceeds an aggregate principal amount of $100,000, a description of such Debt is set forth on Schedule 10.2.1 hereof;
(e) Debt with respect to Debt in respect of netting services, automatic clearinghouse arrangements, overdraft protections, treasury, depository, corporate purchasing cards and other credit cards, cash management, and similar arrangements, in each case incurred in the Ordinary Course of Business;
(f) [reserved];
(g) Permitted Contingent Obligations;
(h) intercompany Debt solely among the Obligors; provided, that any such Debt shall be subordinated on terms reasonably satisfactory to the Administrative Agent to the Obligations hereunder (including pursuant to the terms of the Intercompany Subordination Agreement)hereunder;
(i) Debt incurred in connection with the financing of insurance premiums in the Ordinary Course of Business;
(j) Debt owed to any Person providing workers’ compensation, unemployment insurance, 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;
(k) Debt in respect of performance bonds, completion guarantees, bid bonds, appeal bonds, surety bonds and similar obligations, in each case provided in the Ordinary Course of Business;
(l) [reserved];
(m) [reserved]Guarantee Obligations by any Obligor with respect to Debt otherwise permitted by this Section 10.2.1; provided, that if the Debt being guaranteed is subordinated or pari passu with the Obligations, then the guarantee shall be subordinated or pari passu, as applicable, to the same extent as the Debt being guaranteed;
(n) [reserved];
(o) preferred stock of the Borrower issued prior to the Petition Date and that does not constitute Disqualified Equity Interests, as set forth on Schedule 9.1.4;
(p) Debt consisting of take or pay obligations contained in supply arrangements entered into in the Ordinary Course of Business; provided, that the aggregate amount of all such obligations thereof incurred or arising and or outstanding at any time shall not exceed $500,000; provided, further, that that, no such obligations shall be incurred at any time as of the Petition Date unless permitted by the DIP Orders or other Chapter 11 Order (in each case, in accordance with the Approved Budget);
(q) guarantees required by Governmental Authorities in the Ordinary Course of Business;
(r) [reserved];
(s) Debt arising under Permitted Employment Arrangements in accordance with the Approved Budget, all of which Debt (other than to the extent relating to XXXX/KERP payments approved by the Bankruptcy Court) shall be subordinated on terms acceptable to the Administrative Agent to the Full Payment of the Obligations;
(t) endorsements for collection, deposit, or negotiation and warranties of products or services, in each case incurred in the Ordinary Course of Business;
(u) rental obligations incurred in the Ordinary Course of Business; provided, that the aggregate amount thereof incurred or arising at any time following the Petition Date shall not exceed $1,500,000 unless previously approved in writing by the Administrative Agent;
(v) [reserved];
(w) trade payables and other current liabilities incurred in the Ordinary Course of Business and in accordance with the Approved Budget;; and
(x) all interest accruing on (including capitalized interest), and all reasonable and documented fees and expenses payable in connection with, the obligations described in the foregoing clauses (in the case of (1) clause (a) of this Section 10.2.1), without limiting the amounts otherwise included pursuant to the definition of Obligations or as provided elsewhere in this Agreement Agreement, and (2) clause (b) of this Section 10.2.1), without limiting the amounts otherwise included pursuant to the definition of Prepetition April NPA Debt or Prepetition August NPA Debt)); and. For purposes of determining compliance with this Section 10.2.1, if an item of Debt meets the criteria of more than one of the categories of Debt described above, the Borrower shall, in its sole discretion, classify and reclassify or later divide, classify or reclassify such item of Debt (or any portion thereof) and will only be required to include the amount and type of such Debt in one or
(y) to the extent constituting Debt, obligations under Permitted BTC Hedging Agreement2.1. Notwithstanding anything to the contrary in this Section 10.2.1contrary, no payment shall be made in respect of any Debt (whether or not such Debt is permitted hereunder) at any time after as of the Interim DIP Closing Date except in accordance with the Approved Budget.
Appears in 1 contract
Samples: Loan and Security Agreement (Core Scientific, Inc./Tx)
Permitted Debt. Create, incur, guarantee or suffer to exist any Debt, except Debt incurred or arising pursuant to clauses (a) through (x) below (provided, that, in the case of any such Debt incurred or arising at any time on or after the Petition Date, such Debt shall only be permitted hereunder if no Default or Event of Default shall exist or be continuing as of the time that such Debt is to be incurred or to arise, or shall occur upon, or as a result of, such Debt being incurred or arising):except:
(a) the Obligations;
(b) the Prepetition NPA Facility Term Loan Debt;
(c) the Quebec Subordinated Debt in an outstanding amount not to exceed Cdn. $12,100,000 at any time and solely to the extent that such Debt is subject to the Quebec Subordination Agreements; provided that (i) the Quebec Subordinated Debt incurred Documents shall be in form and substance reasonably satisfactory to finance the acquisition, construction, or improvement of any fixed or capital assets (whether or not constituting Purchase Money Debt), including Capital Lease Obligations Agents and the Required Lenders and (ii) Debt assumed in connection with the acquisition of any of the foregoing assets or secured by a Lien on any such assets prior to the acquisition thereof; provided, that no Quebec Subordinated Debt shall be incurred pursuant hereto at any time after the Petition Date unless permitted pursuant subject to the applicable Chapter 11 Approvals, and no payments in respect thereof shall be made except to the extent in accordance with the Financial Covenants; and provided, further, that the aggregate principal amount of Debt incurred in reliance on this clause (c) after the Petition Date and the creditor payments related thereto are set forth in, and made pursuant to and in accordance with, the Approved BudgetQuebec Subordination Agreements;
(d) Debt incurred prior to the Petition Date; provided, that if any such Debt exceeds an aggregate principal amount of $100,000, a description of such Debt is set forth on Schedule 10.2.1 hereofIntercompany Debt;
(e) Debt with respect to Debt in respect of netting services, automatic clearinghouse arrangements, overdraft protections, treasury, depository, corporate purchasing cards and other credit cards, cash management, and similar arrangements, in each case incurred in the Ordinary Course of Business;
(f) [reserved];
(g) Permitted Contingent Obligations;
(h) intercompany Debt solely among the Obligors; provided, that any such Debt shall be subordinated on terms reasonably satisfactory to the Administrative Agent to the Obligations hereunder (including pursuant to the terms of the Intercompany Subordination Agreement);
(i) Debt incurred in connection with the financing of insurance premiums in the Ordinary Course of Business;
(j) Debt owed to any Person providing workers’ compensation, unemployment insurance, 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;
(k) Debt in respect of performance bonds, completion guarantees, bid bonds, appeal bonds, surety bonds and similar obligations, in each case provided in the Ordinary Course of Business;
(l) [reserved];
(m) [reserved];
(n) [reserved];
(o) preferred stock of Borrower issued prior to the Petition Date and that does not constitute Disqualified Equity Interests, as set forth on Schedule 9.1.4;
(p) Debt consisting of take or pay obligations contained in supply arrangements entered into in the Ordinary Course of Business; provided, that the aggregate amount of all such obligations incurred or arising and outstanding at any time shall not exceed $500,000; provided, further, that no such obligations shall be incurred at any time as of the Petition Date unless permitted by the DIP Orders or other Chapter 11 Order (in each case, in accordance with the Approved Budget);
(q) guarantees required by Governmental Authorities in the Ordinary Course of Business;
(r) [reserved];
(s) Debt arising under Permitted Employment Arrangements in accordance with the Approved Budget, all of which Debt (other than to the extent relating to XXXX/KERP payments approved by the Bankruptcy Court) shall be subordinated on terms acceptable to the Administrative Agent to the Full Payment of the Obligations;
(t) endorsements for collection, deposit, deposit or negotiation and warranties of products or services, in each case incurred in the Ordinary Course of Business;
(uf) rental obligations Debt described in Schedule 10.2.1, but not any extensions, renewals or replacements of such Debt except (i) renewals and extensions expressly provided for in the agreements evidencing any such Debt as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Debt if the terms and conditions thereof are not materially less favorable (taken as a whole) to the obligor thereon or to the Lenders than the Debt being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Debt being refinanced or extended; provided that such Debt permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Debt of an obligor that was not an obligor with respect to the Debt being extended, renewed or refinanced, (B) exceed in a principal amount the Debt being renewed, extended or refinanced, except by an amount equal to a premium on or other amount paid and fees and expenses reasonably incurred in connection with such renewal, extension or refinancing or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(g) Debt incurred in connection with the Ordinary Course acquisition, lease or leasing after the Closing Date of Businessany equipment or fixtures by a Loan Party or under any Capital Lease, provided that the aggregate principal amount of such Debt of the Loan Parties shall not exceed the Dollar Equivalent of $15,000,000 at any one time;
(h) [Reserved];
(i) [Reserved];
(j) such other unsecured Debt that is expressly subordinated to the Full Payment of the Obligations on terms and conditions and pursuant to a subordination agreement acceptable to the Agents and the Required Lenders; provided, provided that the aggregate principal amount of such Debt of the Loan Parties shall not exceed the Dollar Equivalent of $15,000,000 at any one time;
(k) unsecured Debt constituting the Management Debt to the extent subject to the Management Subordination Agreement;
(l) such other Additional Subordinated Debt of the Loan Parties; provided that the aggregate principal amount of such Additional Subordinated Debt of the Loan Parties shall not exceed the Dollar Equivalent of $15,000,000 at any one time; and
(m) the Xxxxxxx Debt of the Loan Parties; provided that the aggregate amount thereof incurred or arising at any time following of such Xxxxxxx Debt of the Petition Date Loan Parties shall not exceed the Dollar Equivalent of $1,500,000 unless previously approved in writing by the Administrative Agent;
(v) [reserved];
(w) trade payables and other current liabilities incurred in the Ordinary Course of Business and in accordance with the Approved Budget;
(x) all interest accruing on (including capitalized interest), and all reasonable and documented fees and expenses payable in connection with, the obligations described in the foregoing clauses (in the case of (1) clause (a) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Obligations or as provided elsewhere in this Agreement and (2) clause (b) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Prepetition April NPA Debt or Prepetition August NPA Debt)); and
(y) to the extent constituting Debt, obligations under Permitted BTC Hedging Agreement. Notwithstanding anything to the contrary in this Section 10.2.1, no payment shall be made in respect of any Debt (whether or not such Debt is permitted hereunder) 10,600,000 at any time after the Interim DIP Closing Date except in accordance with the Approved Budgetone time.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Birks Group Inc.)
Permitted Debt. Create, incur, assume, guarantee or suffer to exist any Debt, except Debt incurred or arising pursuant to clauses (a) through (x) below (provided, that, in the case of any such Debt incurred or arising at any time on or after the Petition Date, such Debt shall only be permitted hereunder if no Default or Event of Default shall exist or be continuing as of the time that such Debt is to be incurred or to arise, or shall occur upon, or as a result of, such Debt being incurred or arising):except:
(ai) the Obligations;
(bii) Subordinated Debt existing on the Prepetition NPA Facility DebtClosing Date or subsequently approved by Xxxxxx in writing, and subject at all times to subordination pursuant to a Subordination Agreement;
(ciii) any (i) Debt incurred accounts payable by such Borrower or a Subsidiary to finance trade creditors that are not aged more than 90 days from billing date or more than 60 days from the acquisition, construction, or improvement of any fixed or capital assets (whether or not constituting Purchase Money Debt), including Capital Lease Obligations and (ii) Debt assumed in connection with the acquisition of any of the foregoing assets or secured by a Lien on any such assets prior to the acquisition thereof; provided, that no Debt shall be incurred pursuant hereto at any time after the Petition Date unless permitted pursuant to the applicable Chapter 11 Approvals, and no payments in respect thereof shall be made except to the extent in accordance with the Financial Covenants; and provided, further, that the aggregate principal amount of Debt incurred in reliance on this clause (c) after the Petition Date and the creditor payments related thereto are set forth in, and made pursuant to and in accordance with, the Approved Budget;
(d) Debt incurred prior to the Petition Date; provided, that if any such Debt exceeds an aggregate principal amount of $100,000, a description of such Debt is set forth on Schedule 10.2.1 hereof;
(e) Debt with respect to Debt in respect of netting services, automatic clearinghouse arrangements, overdraft protections, treasury, depository, corporate purchasing cards and other credit cards, cash management, and similar arrangementsdue date, in each case incurred in the Ordinary Course of BusinessBusiness and paid within such time period, unless the same are being Properly Contested;
(fiv) [reserved]Permitted Purchase Money Debt;
(gv) Permitted Contingent ObligationsDebt existing on the Closing Date and described on Schedule 10.2.3 hereto and any renewals, extensions or refinancings (but not any increases in the principal amounts) thereof;
(hvi) intercompany Debt solely among earnout obligations existing on the Obligors; provided, that any such Debt shall be subordinated on terms reasonably satisfactory date hereof or in respect of Permitted Acquisitions in an aggregate amount not to the Administrative Agent to the Obligations hereunder (including pursuant to the terms of the Intercompany Subordination Agreement)exceed $3,000,000;
(ivii) Debt incurred in connection with the financing of insurance premiums in the Ordinary Course of BusinessPermitted Vehicle Financings;
(jviii) Debt owing between or among Obligors;
(ix) obligations existing or arising under any hedging agreement permitted under Section 10.2.14;
(x) Debt owed to any a Person providing workers’ compensationproperty, unemployment insurancecasualty, health, disability liability or other employee benefits or propertyinsurance to any Obligor, casualty or liability insuranceso long as the amount of such Debt is not in excess of the amount of the unpaid cost of, pursuant and shall be incurred only to reimbursement or indemnification obligations to defer the cost of, such Person, insurance for the year in each case which such Debt is incurred in the Ordinary Course of Businessand such Debt is outstanding only during such year;
(kxi) guarantees of Debt otherwise permitted to be incurred hereunder;
(xii) Debt in respect of performance bonds, completion guarantees, bid bonds, appeal bonds, surety bonds bonds, letters of credit and similar obligations, in each case provided in the Ordinary Course of Business;
(l) [reserved];
(m) [reserved];
(n) [reserved];
(o) preferred stock of Borrower issued prior to the Petition Date and that does not constitute Disqualified Equity Interests, as set forth on Schedule 9.1.4;
(p) Debt consisting of take or pay obligations contained in supply arrangements entered into in the Ordinary Course of Business; provided, that the aggregate amount of all such obligations incurred or arising and outstanding at any time shall not exceed $500,000; provided, further, that no such obligations shall be incurred at any time as of the Petition Date unless permitted by the DIP Orders or other Chapter 11 Order (in each case, in accordance with the Approved Budget);
(q) guarantees required by Governmental Authorities in the Ordinary Course of Business;
(r) [reserved];
(s) Debt arising under Permitted Employment Arrangements in accordance with the Approved Budget, all of which Debt (other than to the extent relating to XXXX/KERP payments approved by the Bankruptcy Court) shall be subordinated on terms acceptable to the Administrative Agent to the Full Payment of the Obligations;
(t) endorsements for collection, deposit, or negotiation and warranties of products or services, in each case incurred in the Ordinary Course of Business;
(u) rental obligations incurred in the Ordinary Course of Business; provided, that the aggregate amount thereof incurred or arising at any time following the Petition Date shall not exceed $1,500,000 unless previously approved in writing by the Administrative Agent;
(v) [reserved];
(w) trade payables and other current liabilities incurred in the Ordinary Course of Business and in accordance with the Approved Budget;
(x) all interest accruing on (including capitalized interest), and all reasonable and documented fees and expenses payable in connection with, the obligations described in the foregoing clauses (in the case of (1) clause (a) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Obligations or as provided elsewhere in this Agreement and (2) clause (b) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Prepetition April NPA Debt or Prepetition August NPA Debt)); and
(yxiii) other Debt in an aggregate principal amount not to the extent constituting Debt, obligations under Permitted BTC Hedging Agreement. Notwithstanding anything to the contrary in this Section 10.2.1, no payment shall be made in respect of any Debt (whether or not such Debt is permitted hereunder) exceed $1,000,000 at any time after outstanding. None of the Interim DIP Closing Date except in accordance with provisions of this Section 10.2.3 that authorize any Obligor to incur any Debt shall be deemed to override, modify or waive any of the Approved Budgetprovisions of Section 10.3, which shall constitute an independent and separate covenant and obligation of Borrower.
Appears in 1 contract
Samples: Loan and Security Agreement (Proficient Auto Logistics, Inc)
Permitted Debt. CreateThe provisions of Section 3.13(A) hereof will not prohibit the incurrence of any of the following items of Indebtedness (collectively, incur“Permitted Debt”):
(i) the incurrence by the Company or any Restricted Subsidiary of Indebtedness under the First Priority Debt Documents in an aggregate principal amount at any one time outstanding under this clause (i) not to exceed, guarantee or suffer to exist any Debtin the aggregate, except Debt incurred or arising pursuant to clauses (a) through the following amount: (x) below (provided, that, in the case of any such First Priority Debt incurred or arising at any time on or after under the Petition DateTerm Loan Documents, such two hundred and fifty million dollars ($250,000,000); and (y) in the case of First Priority Debt shall only be permitted hereunder if no Default or Event of Default shall exist or be continuing as that constitutes First Priority Permitted Refinancing Indebtedness, the amount set forth in clause (A) of the time that such Debt is to be incurred or to arise, or shall occur upon, or as a result of, such Debt being incurred or arising):
(a) the Obligationsdefinition of First Priority Permitted Refinancing Indebtedness;
(bii) the Prepetition NPA Facility Debtincurrence by the Company or any of its Restricted Subsidiaries of the Existing Indebtedness;
(ciii) the incurrence by the Company of Indebtedness represented by the Notes to be issued on the Issue Date, and the incurrence by any Guarantor of Indebtedness to be represented by a Guarantee issued after the Issue Date;
(iiv) Debt (1) Indebtedness of the Company or any of its Restricted Subsidiaries incurred to finance the acquisition, construction, construction or improvement of any fixed or capital assets (whether or not constituting Purchase Money Debtincluding office equipment, data processing equipment and motor vehicles), including Capital Lease Obligations and (ii) Debt any Indebtedness assumed in connection with the acquisition of any of the foregoing assets or secured by a Lien on any such assets prior to the acquisition thereof; providedor (2) any Indebtedness of any Restricted Subsidiary issued and outstanding on or prior to the date on which such Restricted Subsidiary was acquired by the Company or any of its Restricted Subsidiaries, and not incurred in contemplation thereof, in a transaction permitted under this Indenture, and extensions, renewals and replacements of any such Indebtedness that no Debt shall be do not increase the outstanding principal amount thereof, provided that (x) Indebtedness incurred pursuant hereto at any time to clause (1) of this Section 3.13(B)(iv) is incurred prior to or within two hundred and seventy (270) days after such acquisition or the Petition Date unless permitted pursuant to the applicable Chapter 11 Approvals, and no payments in respect thereof shall be made except to the extent in accordance with the Financial Covenantscompletion of such construction or improvement; and provided, further, that (y) the aggregate principal amount of Debt incurred in reliance on Indebtedness permitted by this clause Section 3.13(B)(iv) at any time outstanding does not exceed five million dollars (c) after the Petition Date and the creditor payments related thereto are set forth in, and made pursuant to and in accordance with, the Approved Budget;
(d) Debt incurred prior to the Petition Date; provided, that if any such Debt exceeds an aggregate principal amount of $100,000, a description of such Debt is set forth on Schedule 10.2.1 hereof;
(e) Debt with respect to Debt in respect of netting services, automatic clearinghouse arrangements, overdraft protections, treasury, depository, corporate purchasing cards and other credit cards, cash management, and similar arrangements, in each case incurred in the Ordinary Course of Business;
(f) [reserved];
(g) Permitted Contingent Obligations;
(h) intercompany Debt solely among the Obligors; provided, that any such Debt shall be subordinated on terms reasonably satisfactory to the Administrative Agent to the Obligations hereunder (including pursuant to the terms of the Intercompany Subordination Agreement5,000,000);
(iv) Debt the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund Indebtedness (other than intercompany Indebtedness), that was permitted by this Indenture to be incurred pursuant to clauses (ii), (iii), (iv) or (xi), or this clause (v), of this Section 3.13(B);
(vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that:
(1) if the Company is the obligor on such Indebtedness and a Guarantor is not the obligee, then such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, or if a Guarantor is the obligor on such Indebtedness and neither the Company nor another Guarantor is the obligee, then such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Guarantee of such Guarantor, as the case may be; and
(2) (x) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary of the Company; and (y) any sale or other transfer of any such Indebtedness to a Person that is neither the Company nor a Restricted Subsidiary of the Company will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi);
(1) letters of credit not exceeding seven million five hundred thousand dollars ($7,500,000) in aggregate face amount at any time outstanding; and (2) obligations under Permitted Swap Agreements entered into in the ordinary course and not for speculative purposes;
(viii) the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness that was permitted to be incurred by another provision of this Section 3.13;
(ix) the incurrence by the Company or any of its Restricted Subsidiaries of obligations relating to net gas balancing positions arising in the ordinary course of business and consistent with past practice;
(x) Indebtedness consisting of sureties or bonds provided to any Governmental Authority or other Person and assuring payment of contingent liabilities of the Company in connection with the financing operation of insurance premiums in the Ordinary Course Oil and Gas Properties, including with respect to plugging, facility removal and abandonment of Businessits Oil and Gas Properties;
(jxi) Acquired Debt owed of a Restricted Subsidiary of the Company incurred and outstanding on the date on which such Restricted Subsidiary was acquired by, or merged into, the Company or any other Restricted Subsidiary of the Company; provided, however, that at the time such Restricted Subsidiary is acquired by the Company, either (1) the Company would have been able to any Person providing workers’ compensation, unemployment insurance, health, disability or other employee benefits or property, casualty or liability insurance, incur one dollar ($1.00) of additional Indebtedness pursuant to reimbursement Section 3.13(A) after giving effect to the incurrence of such Indebtedness pursuant to this clause (xi); or indemnification obligations (2) the Fixed Charge Coverage Ratio of the Company after giving pro forma effect to such Person, in each case incurred in transaction is greater than or equal to the Ordinary Course of BusinessCompany’s Fixed Charge Coverage Ratio immediately prior to such transaction;
(kxii) Debt in respect the incurrence by the Company or any of performance bondsits Restricted Subsidiaries of Indebtedness arising from agreements of the Company or any of its Restricted Subsidiaries providing for indemnification, completion guarantees, bid bonds, appeal bonds, surety bonds and adjustment of purchase price or similar obligations, in each case incurred or assumed in connection with the disposition of any business, assets or Capital Stock of a Subsidiary, provided that the maximum aggregate liability in respect of all such Indebtedness will at no time exceed the Ordinary Course of Businessgross proceeds actually received by the Company and its Restricted Subsidiaries in connection with such disposition;
(lxiii) [reserved];
(m) [reserved];
(n) [reserved];
(o) preferred stock the incurrence of Borrower issued prior to the Petition Date and that does not constitute Disqualified Equity Interests, as set forth on Schedule 9.1.4;
(p) Debt consisting of take or pay obligations contained in supply arrangements entered into in the Ordinary Course of Business; provided, that the aggregate amount of all such obligations incurred or arising and outstanding at any time shall not exceed $500,000; provided, further, that no such obligations shall be incurred at any time as of the Petition Date unless permitted by the DIP Orders or other Chapter 11 Order (in each case, Indebtedness representing Paid-in-Kind Principal in accordance with the Approved Budget);
(q) guarantees required by Governmental Authorities in the Ordinary Course of Business;
(r) [reserved];
(s) Debt arising under Permitted Employment Arrangements in accordance with the Approved Budget, all of which Debt (other than to the extent relating to XXXX/KERP payments approved by the Bankruptcy Court) shall be subordinated on terms acceptable to the Administrative Agent to the Full Payment of the Obligations;
(t) endorsements for collection, deposit, or negotiation and warranties of products or services, in each case incurred in the Ordinary Course of Business;
(u) rental obligations incurred in the Ordinary Course of Business; provided, that the aggregate amount thereof incurred or arising at any time following the Petition Date shall not exceed $1,500,000 unless previously approved in writing by the Administrative Agent;
(v) [reserved];
(w) trade payables and other current liabilities incurred in the Ordinary Course of Business and in accordance with the Approved Budget;
(x) all interest accruing on (including capitalized interest), and all reasonable and documented fees and expenses payable in connection with, the obligations described in the foregoing clauses (in the case of (1) clause (a) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Obligations or as provided elsewhere in this Agreement and (2) clause (b) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Prepetition April NPA Debt or Prepetition August NPA Debt))Indenture; and
(yxiv) to the extent constituting Debtincurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, obligations under Permitted BTC Hedging Agreement. Notwithstanding anything to the contrary in this Section 10.2.1, no payment shall be made in respect of any Debt (whether or not such Debt is permitted hereunderas applicable) at any time after the Interim DIP Closing Date except in accordance with the Approved Budgetoutstanding, not to exceed one million dollars ($1,000,000).
Appears in 1 contract
Samples: Indenture (Gastar Exploration Inc.)
Permitted Debt. Create, incur, guarantee or suffer to exist any Debt, except Debt incurred or arising pursuant to clauses (a) through (x) below (provided, that, in the case of any such Debt incurred or arising at any time on or after the Petition Date, such Debt shall only be permitted hereunder if no Default or Event of Default shall exist or be continuing as of the time that such Debt is to be incurred or to arise, or shall occur upon, or as a result of, such Debt being incurred or arising):except:
(a) the Obligations;
(b) Debt of any Borrower that is either EMAK or a wholly-owned Domestic Subsidiary of EMAK to any other Borrower that is either EMAK or a wholly-owned Domestic Subsidiary of EMAK; provided that (a) all such intercompany Debt shall be evidenced by promissory notes that are pledged to Agent pursuant to the Prepetition NPA Facility Debtterms of the applicable Security Document, (b) all such intercompany Debt owed by any such Borrower to any such other Borrower shall be subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement, and (c) any payment by any such Borrower under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any intercompany Debt owed by such Borrower to any such other Borrower for whose benefit such payment is made;
(c) any Permitted Purchase Money Debt;
(id) Borrowed Money (other than the Obligations, Subordinated Debt incurred to finance the acquisition, construction, or improvement of any fixed or capital assets (whether or not constituting and Permitted Purchase Money Debt), including Capital Lease Obligations and (ii) Debt assumed in connection with the acquisition of any of the foregoing assets or secured by a Lien on any such assets prior to the acquisition thereof; provided, that no Debt shall be incurred pursuant hereto at any time after the Petition Date unless permitted pursuant to the applicable Chapter 11 Approvals, and no payments in respect thereof shall be made except but only to the extent in accordance with outstanding on the Financial Covenants; and provided, further, that the aggregate principal amount of Debt incurred in reliance on this clause (c) after the Petition Closing Date and the creditor payments related thereto are set forth in, and made pursuant to and in accordance with, the Approved Budget;
(d) Debt incurred prior to the Petition Date; provided, that if any such Debt exceeds an aggregate principal amount of $100,000, a description of such Debt is set forth listed on Schedule 10.2.1 hereofand not satisfied with proceeds of the initial Loans;
(e) Debt with respect to Debt in respect of netting services, automatic clearinghouse arrangements, overdraft protections, treasury, depository, corporate purchasing cards and other credit cards, cash management, and similar arrangements, in each case incurred in the Ordinary Course of BusinessBank Product Debt;
(f) [reserved]Debt of Foreign Subsidiaries to banks for working capital purposes not exceeding 5,000,000 in the aggregate at any time outstanding;
(g) Permitted Contingent Obligations;
(h) intercompany Refinancing Debt solely among the Obligorsas long as each Refinancing Condition is satisfied; provided, that any such Debt shall be subordinated on terms reasonably satisfactory to the Administrative Agent to the Obligations hereunder (including pursuant to the terms of the Intercompany Subordination Agreement);and
(i) Debt incurred that is not included in connection with any of the financing preceding clauses of insurance premiums in the Ordinary Course of Business;
(j) Debt owed to any Person providing workers’ compensationthis Section, unemployment insurance, 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;
(k) Debt in respect of performance bonds, completion guarantees, bid bonds, appeal bonds, surety bonds is not secured by a Lien and similar obligations, in each case provided in the Ordinary Course of Business;
(l) [reserved];
(m) [reserved];
(n) [reserved];
(o) preferred stock of Borrower issued prior to the Petition Date and that does not constitute Disqualified Equity Interests, as set forth on Schedule 9.1.4;
(p) Debt consisting of take or pay obligations contained in supply arrangements entered into in the Ordinary Course of Business; provided, that the aggregate amount of all such obligations incurred or arising and outstanding at any time shall not exceed $500,000; provided, further, that no such obligations shall be incurred 1,000,000 in the aggregate at any time as of the Petition Date unless permitted by the DIP Orders or other Chapter 11 Order (in each case, in accordance with the Approved Budget);
(q) guarantees required by Governmental Authorities in the Ordinary Course of Business;
(r) [reserved];
(s) Debt arising under Permitted Employment Arrangements in accordance with the Approved Budget, all of which Debt (other than to the extent relating to XXXX/KERP payments approved by the Bankruptcy Court) shall be subordinated on terms acceptable to the Administrative Agent to the Full Payment of the Obligations;
(t) endorsements for collection, deposit, or negotiation and warranties of products or services, in each case incurred in the Ordinary Course of Business;
(u) rental obligations incurred in the Ordinary Course of Business; provided, that the aggregate amount thereof incurred or arising at any time following the Petition Date shall not exceed $1,500,000 unless previously approved in writing by the Administrative Agent;
(v) [reserved];
(w) trade payables and other current liabilities incurred in the Ordinary Course of Business and in accordance with the Approved Budget;
(x) all interest accruing on (including capitalized interest), and all reasonable and documented fees and expenses payable in connection with, the obligations described in the foregoing clauses (in the case of (1) clause (a) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Obligations or as provided elsewhere in this Agreement and (2) clause (b) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Prepetition April NPA Debt or Prepetition August NPA Debt)); and
(y) to the extent constituting Debt, obligations under Permitted BTC Hedging Agreement. Notwithstanding anything to the contrary in this Section 10.2.1, no payment shall be made in respect of any Debt (whether or not such Debt is permitted hereunder) at any time after the Interim DIP Closing Date except in accordance with the Approved Budgettime.
Appears in 1 contract
Permitted Debt. Create, incur, assume, guarantee or suffer to exist any Debt, except Debt incurred or arising pursuant to clauses (a) through (x) below (provided, that, in the case of any such Debt incurred or arising at any time on or after the Petition Date, such Debt shall only be permitted hereunder if no Default or Event of Default shall exist or be continuing as of the time that such Debt is to be incurred or to arise, or shall occur upon, or as a result of, such Debt being incurred or arising):except:
(ai) the Obligations;
(bii) Debt existing on the Prepetition NPA Facility Petition Date;
(iii) Permitted Purchase Money Debt;
(civ) any (i) Debt incurred to finance the acquisition, construction, or improvement of any fixed or capital assets (whether or not constituting Purchase Money Debt), including Capital Lease Obligations and (ii) Debt assumed in connection with the acquisition of any of the foregoing assets or secured by a Lien on any such assets prior to the acquisition thereof; provided, that no Debt shall be incurred pursuant hereto at any time after the Petition Date unless permitted pursuant to the applicable Chapter 11 Approvals, and no payments in respect thereof shall be made except to the extent in accordance with the Financial Covenants; and provided, further, that the aggregate principal amount of Debt incurred in reliance on this clause (c) after the Petition Date and the creditor payments related thereto are set forth in, and made pursuant to and in accordance with, the Approved BudgetPermitted Contingent Obligations;
(dv) Debt incurred prior to of any Person that is in existence at the Petition Date; provided, time that if it becomes or is consolidated into or merged with a Subsidiary of such Borrower or that is secured by any asset acquired by any Borrower or any Subsidiary at the time of any such Debt exceeds an aggregate principal amount of $100,000acquisition, a description of provided that such Debt is set forth on Schedule 10.2.1 hereofnot incurred in contemplation of such Person becoming a Subsidiary or such acquisition of such asset by any Borrower or any of its Subsidiaries, as the case may be;
(evi) Debt with respect of an Obligor to any other Obligor or a Subsidiary that is not an Obligor;
(vii) Debt of a Subsidiary that is not an Obligor to another Subsidiary that is not an Obligor;
(viii) Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the Ordinary Course of Business, provided that such Debt is extinguished within 5 Business Days of its incurrence;
(ix) Hedging Agreements entered into in the Ordinary Course of Business and not for speculative purposes;
(x) Debt of a Borrower and its Subsidiaries in respect of netting servicesperformance bonds, automatic clearinghouse arrangementsbid bonds, overdraft protectionsappeal bonds, treasurysurety bonds, depository, corporate purchasing cards and other credit cards, cash management, bankers’ acceptances and similar arrangementsobligations and trade-related letters of credit, in each case provided that such Debt is incurred in the Ordinary Course of Business and not in connection with Debt for Money Borrowed, including those incurred to secure health, safety and environmental obligations in the Ordinary Course of Business;
(f) [reserved];
(g) Permitted Contingent Obligations;
(h) intercompany Debt solely among the Obligors; provided, that any such Debt shall be subordinated on terms reasonably satisfactory to the Administrative Agent to the Obligations hereunder (including pursuant to the terms of the Intercompany Subordination Agreement);
(ixi) Debt incurred in connection with the financing arising from agreements of insurance premiums in the Ordinary Course a Borrower or any Subsidiary of Business;
(j) Debt owed to any Person a Borrower providing workers’ compensationfor indemnification, unemployment insuranceadjustment of purchase price, health, disability earn-outs 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;
(k) Debt in respect of performance bonds, completion guarantees, bid bonds, appeal bonds, surety bonds and similar obligations, in each case provided case, incurred or assumed in connection with the Ordinary Course acquisition of Businessany business, assets or a Subsidiary of a Borrower, other than guarantees of Debt incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary of a Borrower for the purpose of financing such acquisition;
(lxii) [reserved]Debt incurred by a Subsidiary that is not an Obligor which is non-recourse to the Obligors;
(mxiii) [reserved]Debt incurred by a Borrower or any Subsidiary thereof to finance the payment of insurance premiums;
(nxiv) [reserved]Debt of InSight Health under the Senior Notes up to an aggregate principal amount of $315,000,000;
(oxv) preferred stock Debt that is not included in any of the preceding paragraphs of this Section 10.2.2, is not secured by a Lien and does not exceed at any time, in the aggregate, the sum of $30,000,000 as to all Borrowers and all of their Subsidiaries;
(xvi) Reserved;
(xvii) claims against a Borrower issued prior to in existence on the Petition Date and that does to the extent not constitute Disqualified Equity Interests, as set forth on Schedule 9.1.4;incurred in violation of the Pre-Petition Loan Agreement; and
(pxviii) Debt consisting of take or pay obligations contained in supply arrangements entered into in the Ordinary Course of Business; provided, that the aggregate amount of all such obligations incurred or arising and outstanding at any time shall not exceed $500,000; provided, further, that no such obligations shall be incurred at any time as of the Petition Date unless permitted by the DIP Orders or other Chapter 11 Order (in each case, in accordance with the Approved Budget);
(q) guarantees required by Governmental Authorities in the Ordinary Course of Business;
(r) [reserved];
(s) Debt arising under Permitted Employment Arrangements in accordance with the Approved Budget, all of which Debt (other than to the extent relating to XXXX/KERP payments approved by the Bankruptcy CourtDebt for Money Borrowed) shall be subordinated on terms acceptable to the Administrative Agent to the Full Payment of the Obligations;
(t) endorsements for collection, deposit, or negotiation and warranties of products or services, in each case incurred in the Ordinary Course of Business;
(u) rental obligations incurred in the Ordinary Course of Business; provided, that the aggregate amount thereof incurred or arising at any time following the Petition Date shall not exceed $1,500,000 unless previously approved in writing by the Administrative Agent;
(v) [reserved];
(w) trade payables and other current liabilities incurred in the Ordinary Course of Business and in accordance with of a Borrower during the Approved Budget;
(x) all interest accruing on (Chapter 11 Cases, including capitalized interest)Professional Expenses, and all reasonable and documented fees and expenses payable in connection with, the obligations described in the foregoing clauses (in the case of (1) clause (a) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Obligations or so long as provided elsewhere in this Agreement and (2) clause (b) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Prepetition April NPA Debt or Prepetition August NPA Debt)); and
(y) to the extent constituting Debt, obligations under Permitted BTC Hedging Agreement. Notwithstanding anything to the contrary in this Section 10.2.1, no payment shall be made in respect of any Debt (whether or not such Debt is not past due and payable (other than as required by the Court) and is not secured by a Lien that is not permitted hereunder) at any time after the Interim DIP Closing Date except in accordance with the Approved Budgetpursuant to Section 10.2.4 of this Agreement.
Appears in 1 contract
Samples: Post Petition Loan and Security Agreement (Insight Health Services Holdings Corp)
Permitted Debt. Create, incur, guarantee or suffer to exist any Debt, except Debt incurred or arising pursuant to clauses (a) through (x) below (provided, that, in the case of any such Debt incurred or arising at any time on or after the Petition Date, such Debt shall only be permitted hereunder if no Default or Event of Default shall exist or be continuing as of the time that such Debt is to be incurred or to arise, or shall occur upon, or as a result of, such Debt being incurred or arising):except:
(a) the Obligations;
(b) the Prepetition NPA Facility Subordinated Debt;
(c) any (i) Debt incurred to finance the acquisition, construction, or improvement of any fixed or capital assets (whether or not constituting Permitted Purchase Money Debt), including Capital Lease Obligations and (ii) Debt assumed in connection with the acquisition of any of the foregoing assets or secured by a Lien on any such assets prior to the acquisition thereof; provided, that no Debt shall be incurred pursuant hereto at any time after the Petition Date unless permitted pursuant to the applicable Chapter 11 Approvals, and no payments in respect thereof shall be made except to the extent in accordance with the Financial Covenants; and provided, further, that the aggregate principal amount of Debt incurred in reliance on this clause (c) after the Petition Date and the creditor payments related thereto are set forth in, and made pursuant to and in accordance with, the Approved Budget;
(d) Debt incurred prior to the Petition Date; provided, that if any such Debt exceeds an aggregate principal amount of $100,000, a description of such Debt is Borrowed Money set forth on Schedule 10.2.1 hereof;10.2.1, but only to the extent outstanding on the SecondFourth Amendment Effective Date
(e) Debt with respect to Debt in respect of netting services, automatic clearinghouse arrangements, overdraft protections, treasury, depository, corporate purchasing cards and other credit cards, cash management, and similar arrangements, in each case Bank Products incurred in the Ordinary Course of Business;
(f) [reserved]Debt in respect of Hedging Agreements entered into in the Ordinary Course of Business and not for speculative purposes;
(g) Permitted Contingent Obligations;
(h) intercompany Refinancing Debt solely among the Obligors; provided, that any such Debt shall be subordinated on terms reasonably satisfactory to the Administrative Agent to the Obligations hereunder (including pursuant to the terms of the Intercompany Subordination Agreement)as long as each Refinancing Condition is satisfied;
(i) intercompany Debt extended by UK Borrower to any other Obligor or by US Borrower to any other Obligor which is not a Foreign Subsidiary;
(j) Debt incurred in connection with the financing of insurance premiums in the Ordinary Course of Businesspremiums;
(jk) Debt owed to any Person providing workers’ compensation, unemployment insurance, 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;
(kl) Contingent Obligations by any Obligor of Debt of any other Obligor that was permitted to be incurred under another clause of this Section 10.2.1;
(m) Debt arising from agreements providing for indemnification, adjustment of purchase price, earnout or other similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business, assets or a Subsidiary, other than guarantees of Debt incurred by any Person acquiring all or any portion of such business, assets or Subsidiary for the purpose of financing such acquisition; provided that, except for the Permitted Earnout Payment, Debt arising with respect to earnout or other similar obligations permitted pursuant to this clause (m) shall be Subordinated Debt and shall not exceed $3,000,000 at any time outstanding;
(n) Debt in respect of performance bonds, completion guarantees, bid bonds, appeal bonds, surety bonds and similar obligations, in each case provided in the Ordinary Course of Business;
(l) [reserved];
(m) [reserved];
(n) [reserved];
(o) preferred stock of Borrower issued prior the Term Loan Debt, subject to the Petition Date and that does not constitute Disqualified Equity Interests, as set forth on Schedule 9.1.4Term Loan Intercreditor Agreement;
(p) Debt consisting that is not included in any of take or pay obligations contained the preceding clauses of this Section, is not secured by a Lien and in supply arrangements entered into in the Ordinary Course of Business; provided, that the an aggregate outstanding principal amount of all such obligations incurred or arising and outstanding at any time shall not to exceed $500,000; provided, further, that no such obligations shall be incurred at any time as of 5,000,000 times the Petition Date unless permitted by the DIP Orders or other Chapter 11 Order (in each case, in accordance with the Approved Budget)Growth Multiple;
(q) guarantees required by Governmental Authorities in the Ordinary Course of Business[Reserved];
(r) [reserved];
(s) Debt arising under Permitted Employment Arrangements in accordance with the Approved Budget, all of which Debt (other than to the extent relating to XXXX/KERP payments approved by the Bankruptcy Court) shall be subordinated on terms acceptable to the Administrative Agent to the Full Payment of the Obligations;
(t) endorsements for collection, deposit, or negotiation and warranties of products or services, in each case incurred in the Ordinary Course of Business;
(u) rental obligations incurred in the Ordinary Course of Business; provided, that the aggregate amount thereof incurred or arising at any time following the Petition Date shall not exceed $1,500,000 unless previously approved in writing by the Administrative Agent;
(v) [reserved];
(w) trade payables and other current liabilities incurred in the Ordinary Course of Business and in accordance with the Approved Budget;
(x) all interest accruing on (including capitalized interest), and all reasonable and documented fees and expenses payable in connection with, the obligations described in the foregoing clauses (in the case of (1) clause (a) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Obligations or as provided elsewhere in this Agreement and (2) clause (b) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Prepetition April NPA Debt or Prepetition August NPA Debt)); and
(y) to the extent constituting Debt, obligations under Permitted BTC Hedging Agreement. Notwithstanding anything to the contrary in this Section 10.2.1, no payment shall be made in respect of with any Debt (whether or not such Debt is permitted hereunder) at any time after the Interim DIP Closing Date except in accordance with the Approved Budgetlease arrangements for Real Estate entered into by UK Borrower.
Appears in 1 contract
Samples: Loan, Guaranty and Security Agreement (Turtle Beach Corp)
Permitted Debt. Create, incur, guarantee or suffer to exist any Debt, except Debt incurred or arising pursuant to clauses (a) through (x) below (provided, that, in the case of any such Debt incurred or arising at any time on or after the Petition Date, such Debt shall only be permitted hereunder if no Default or Event of Default shall exist or be continuing as of the time that such Debt is to be incurred or to arise, or shall occur upon, or as a result of, such Debt being incurred or arising):except:
(a) the Obligations;
(b) the Prepetition NPA Facility Mortgage Loan Debt;
(c) any the Senior Note Debt;
(id) Permitted Purchase Money Debt;
(e) Borrowed Money (other than the Obligations, Mortgage Loan Debt, the Senior Note Debt incurred to finance the acquisition, construction, or improvement of any fixed or capital assets (whether or not constituting and Permitted Purchase Money Debt), including Capital Lease Obligations and (ii) Debt assumed in connection with the acquisition of any of the foregoing assets or secured by a Lien on any such assets prior to the acquisition thereof; provided, that no Debt shall be incurred pursuant hereto at any time after the Petition Date unless permitted pursuant to the applicable Chapter 11 Approvals, and no payments in respect thereof shall be made except but only to the extent in accordance outstanding on the Closing Date, not satisfied with proceeds of the Financial Covenants; initial Loans and provided, further, that the aggregate principal amount of Debt incurred in reliance on this clause (c) after the Petition Date and the creditor payments related thereto are set forth in, and made pursuant to and in accordance with, the Approved Budget;
(d) Debt incurred prior to the Petition Date; provided, that if any such Debt exceeds an aggregate principal amount of $100,000, a description of such Debt is set forth on Schedule 10.2.1 hereof;
(e) Debt with respect to Debt in respect of netting services, automatic clearinghouse arrangements, overdraft protections, treasury, depository, corporate purchasing cards and other credit cards, cash management, and similar arrangements, in each case incurred in the Ordinary Course of Business10.2.1;
(f) [reserved]Bank Product Debt; provided that with respect to such Bank Product Debt in respect of Hedging Agreements, such Obligor is otherwise permitted to enter into such Hedging Agreement pursuant to Section 10.2.15;
(g) Permitted Contingent Obligations;
(h) intercompany Refinancing Debt solely among the Obligors; provided, that any such Debt shall be subordinated on terms reasonably satisfactory to the Administrative Agent to the Obligations hereunder (including pursuant to the terms of the Intercompany Subordination Agreement)as long as each Refinancing Condition is satisfied;
(i) Debt that is not included in any of the preceding clauses of this Section 10.2.1, is not secured by a Lien and the principal amount thereof does not exceed, in the aggregate at any time (x) $5,000,000 minus (y) the then outstanding principal amount of Permitted Purchase Money Debt in excess of $20,000,000;
(j) the guarantee by any Obligor of Debt of another Obligor so long as such Debt was otherwise permitted to be incurred under this Section 10.2.1;
(k) Intentionally Omitted;
(l) the incurrence by any Obligor of Debt arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or guarantees or letters of credit, surety bonds or performance bonds securing any obligations of any other Obligor pursuant to such agreements, in any case incurred in connection with the disposition of any business, assets or capital stock of any Obligor (other than guarantees of Debt incurred by any Person acquiring all or any portion of such business, assets or capital stock of such Obligor for the purpose of financing of insurance premiums such acquisition), so long as the principal amount does not exceed the gross proceeds actually received by any Obligor in the Ordinary Course of Businessconnection with such disposition;
(jm) the incurrence by any Obligor of Debt owed to any Person providing workers’ compensation, unemployment insurance, health, disability arising from the honoring by a bank or other employee benefits financial institution of a check, draft or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred similar instrument drawn against insufficient funds in the Ordinary Course ordinary course of Businessbusiness, provided, however, that such Indebtedness is extinguished within five Business Days of its Incurrence;
(kn) Debt in respect of performance bonds, completion guarantees, bid bonds, appeal bonds, surety bonds and similar obligations, in each case provided in the Ordinary Course of Business;
(l) [reserved];
(m) [reserved];
(n) [reserved]loans permitted to be made pursuant to Section 10.2.7;
(o) preferred stock an unsecured guarantee by any Obligor of Borrower issued prior to the Petition Date and that does not constitute Disqualified Equity Interestsobligations of any other Obligor, as set forth on Schedule 9.1.4;tenant, under any Master Lease; and
(p) the incurrence by any Obligor and/or any Subsidiary of non-interest bearing Debt consisting of take or pay obligations contained in supply arrangements entered into in the Ordinary Course of Business; provided, that the an aggregate amount of all such obligations incurred or arising and outstanding at any time shall not to exceed $500,000; provided12,000,000, furtherwith the proceeds of such Debt to be used to construct and make leasehold improvements to a new store to be located at the Hawthorne Shopping Center in Vernon Hills, that no such obligations shall be incurred at any time as Illinois and leased by one of the Petition Date unless permitted by the DIP Orders or other Chapter 11 Order (in each caseObligors, in accordance with the Approved Budget);
(q) guarantees required by Governmental Authorities documents evidencing such Debt to be in the Ordinary Course of Business;
(r) [reserved];
(s) Debt arising under Permitted Employment Arrangements in accordance with the Approved Budget, all of which Debt (other than form and substance satisfactory to the extent relating to XXXX/KERP payments approved by the Bankruptcy Court) shall be subordinated on terms acceptable to the Administrative Agent to the Full Payment of the Obligations;
(t) endorsements for collection, deposit, or negotiation and warranties of products or services, in each case incurred in the Ordinary Course of Business;
(u) rental obligations incurred in the Ordinary Course of Business; provided, that the aggregate amount thereof incurred or arising at any time following the Petition Date shall not exceed $1,500,000 unless previously approved in writing by the Administrative Agent;
(v) [reserved];
(w) trade payables and other current liabilities incurred in the Ordinary Course of Business and in accordance with the Approved Budget;
(x) all interest accruing on (including capitalized interest), and all its reasonable and documented fees and expenses payable in connection with, the obligations described in the foregoing clauses (in the case of (1) clause (a) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Obligations or as provided elsewhere in this Agreement and (2) clause (b) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Prepetition April NPA Debt or Prepetition August NPA Debt)); and
(y) to the extent constituting Debt, obligations under Permitted BTC Hedging Agreement. Notwithstanding anything to the contrary in this Section 10.2.1, no payment shall be made in respect of any Debt (whether or not such Debt is permitted hereunder) at any time after the Interim DIP Closing Date except in accordance with the Approved Budgetdiscretion.
Appears in 1 contract
Permitted Debt. Create, incur, assume, guarantee or suffer to exist any Debt, except Debt incurred or arising pursuant to clauses (a) through (x) below (provided, that, in the case of any such Debt incurred or arising at any time on or after the Petition Date, such Debt shall only be permitted hereunder if no Default or Event of Default shall exist or be continuing as of the time that such Debt is to be incurred or to arise, or shall occur upon, or as a result of, such Debt being incurred or arising):except:
(ai) the Obligations;
(bii) Debt existing on the Prepetition NPA Facility Restatement Effective Date;
(iii) Permitted Purchase Money Debt;
(civ) any (i) Debt incurred to finance the acquisition, construction, or improvement of any fixed or capital assets (whether or not constituting Purchase Money Debt), including Capital Lease Obligations and (ii) Debt assumed in connection with the acquisition of any of the foregoing assets or secured by a Lien on any such assets prior to the acquisition thereof; provided, that no Debt shall be incurred pursuant hereto at any time after the Petition Date unless permitted pursuant to the applicable Chapter 11 Approvals, and no payments in respect thereof shall be made except to the extent in accordance with the Financial Covenants; and provided, further, that the aggregate principal amount of Debt incurred in reliance on this clause (c) after the Petition Date and the creditor payments related thereto are set forth in, and made pursuant to and in accordance with, the Approved BudgetPermitted Contingent Obligations;
(dv) Debt incurred prior to of any Person that is in existence at the Petition Date; provided, time that if it becomes or is consolidated into or merged with a Subsidiary of such Borrower or that is secured by any asset acquired by any Borrower or any Subsidiary at the time of any such Debt exceeds an aggregate principal amount of $100,000acquisition, a description of provided that such Debt is set forth on Schedule 10.2.1 hereofnot incurred in contemplation of such Person becoming a Subsidiary or such acquisition of such asset by any Borrower or any of its Subsidiaries, as the case may be;
(evi) Debt with respect of an Obligor to any other Obligor or a Subsidiary that is not an Obligor;
(vii) Debt of a Subsidiary that is not an Obligor to another Subsidiary that is not an Obligor;
(viii) Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the Ordinary Course of Business, provided that such Debt is extinguished within 5 Business Days of its incurrence;
(ix) Hedging Agreements entered into in the Ordinary Course of Business and not for speculative purposes;
(x) Debt of a Borrower and its Subsidiaries in respect of netting servicesperformance bonds, automatic clearinghouse arrangementsbid bonds, overdraft protectionsappeal bonds, treasurysurety bonds, depository, corporate purchasing cards and other credit cards, cash management, bankers' acceptances and similar arrangementsobligations and trade-related letters of credit, in each case provided that such Debt is incurred in the Ordinary Course of Business and not in connection with Debt for Money Borrowed, including those incurred to secure health, safety and environmental obligations in the Ordinary Course of Business;
(f) [reserved];
(g) Permitted Contingent Obligations;
(h) intercompany Debt solely among the Obligors; provided, that any such Debt shall be subordinated on terms reasonably satisfactory to the Administrative Agent to the Obligations hereunder (including pursuant to the terms of the Intercompany Subordination Agreement);
(ixi) Debt incurred in connection with the financing arising from agreements of insurance premiums in the Ordinary Course a Borrower or any Subsidiary of Business;
(j) Debt owed to any Person a Borrower providing workers’ compensationfor indemnification, unemployment insuranceadjustment of purchase price, health, disability earn-outs 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;
(k) Debt in respect of performance bonds, completion guarantees, bid bonds, appeal bonds, surety bonds and similar obligations, in each case provided case, incurred or assumed in connection with the Ordinary Course acquisition of Businessany business, assets or a Subsidiary of a Borrower, other than guarantees of Debt incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary of a Borrower for the purpose of financing such acquisition;
(lxii) [reserved]Debt incurred by a Subsidiary that is not an Obligor which is non-recourse to the Obligors;
(m) [reserved];
(n) [reserved];
(o) preferred stock of Borrower issued prior to the Petition Date and that does not constitute Disqualified Equity Interests, as set forth on Schedule 9.1.4;
(pxiii) Debt consisting incurred by a Borrower or any Subsidiary thereof to finance the payment of take or pay obligations contained in supply arrangements entered into in the Ordinary Course of Business; provided, that the aggregate amount of all such obligations incurred or arising and outstanding at any time shall not exceed $500,000; provided, further, that no such obligations shall be incurred at any time as of the Petition Date unless permitted by the DIP Orders or other Chapter 11 Order (in each case, in accordance with the Approved Budget)insurance premiums;
(q) guarantees required by Governmental Authorities in the Ordinary Course of Business;
(r) [reserved];
(s) Debt arising under Permitted Employment Arrangements in accordance with the Approved Budget, all of which Debt (other than to the extent relating to XXXX/KERP payments approved by the Bankruptcy Court) shall be subordinated on terms acceptable to the Administrative Agent to the Full Payment of the Obligations;
(t) endorsements for collection, deposit, or negotiation and warranties of products or services, in each case incurred in the Ordinary Course of Business;
(u) rental obligations incurred in the Ordinary Course of Business; provided, that the aggregate amount thereof incurred or arising at any time following the Petition Date shall not exceed $1,500,000 unless previously approved in writing by the Administrative Agent;
(v) [reserved];
(w) trade payables and other current liabilities incurred in the Ordinary Course of Business and in accordance with the Approved Budget;
(x) all interest accruing on (including capitalized interest), and all reasonable and documented fees and expenses payable in connection with, the obligations described in the foregoing clauses (in the case of (1) clause (a) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Obligations or as provided elsewhere in this Agreement and (2) clause (b) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Prepetition April NPA Debt or Prepetition August NPA Debt)); and
(y) to the extent constituting Debt, obligations under Permitted BTC Hedging Agreement. Notwithstanding anything to the contrary in this Section 10.2.1, no payment shall be made in respect of any Debt (whether or not such Debt is permitted hereunder) at any time after the Interim DIP Closing Date except in accordance with the Approved Budget.
Appears in 1 contract
Samples: Loan and Security Agreement (IMI of Arlington, Inc.)
Permitted Debt. CreateThe Borrowers and the Guarantors will not, incurand will not permit any other Subsidiary to, guarantee create, assume, incur or suffer to exist any Debt, except Debt incurred or arising pursuant to clauses as follows:
(a) through (x) below intercompany Debt as shown on SCHEDULE 5.20 or otherwise arising in connection with an Investment permitted by SECTION 5.16(iv), (providedvi) or (xii), that(v) Debt arising after the Closing Date owing by any Borrower or Guarantor to any other Borrower or Guarantor, (w) Debt arising after the Closing Date owing by any Subsidiary (other than a Borrower or Guarantor) to any Borrower or Guarantor in the case of any an aggregate principal amount (for all such Debt incurred or arising Subsidiaries) not to exceed $7,500,000 at any time on or outstanding, (y) Debt arising after the Petition DateClosing Date owing by any Subsidiary (other than a Borrower or Guarantor) to any other Subsidiary (other than a Borrower or Guarantor), such and (z) Debt shall only be consisting of Guarantees by the Parent, the Borrowers or any Subsidiaries incurred in the ordinary course of business for the benefit of the Parent, the Borrowers or any Subsidiary, provided that the primary obligation being guaranteed is permitted hereunder if by this Agreement, and provided, further, that immediately after giving effect to the creation, assumption or incurrence of any Debt permitted by clause (z) of this paragraph (a), no Default or Event of Default shall exist or have occurred and be continuing as of the time that such Debt is to be incurred or to arise, or shall occur upon, or as a result of, such Debt being incurred or arising):
(a) the Obligationscontinuing;
(b) Debt to the Prepetition NPA Facility DebtAgent and the Lenders under this Agreement and the other Credit Documents and to Wachovia or the LC Issuer under any document or agreement pertaining to any Letter of Credit;
(c) any Debt to Persons other than that described in the foregoing clauses (ia) Debt incurred to finance the acquisition, construction, or improvement of any fixed or capital assets (whether or not constituting Purchase Money Debt), including Capital Lease Obligations and (iib) Debt assumed existing on the date of this Agreement and described in connection with the acquisition of any of the foregoing assets or secured by a Lien on any such assets prior to the acquisition thereof; provided, that no Debt shall be incurred pursuant hereto at any time after the Petition Date unless permitted pursuant to the applicable Chapter 11 Approvals, and no payments in respect thereof shall be made except to the extent in accordance with the Financial Covenants; and provided, further, that the aggregate principal amount of Debt incurred in reliance on this clause (c) after the Petition Date and the creditor payments related thereto are set forth in, and made pursuant to and in accordance with, the Approved BudgetSCHEDULE 5.20;
(d) Debt incurred prior to the Petition Date; provided, that if any such Debt exceeds an aggregate principal amount of $100,000, a description of such Debt is set forth on Schedule 10.2.1 hereofSubordinated Debt;
(e) Debt with respect to Debt in respect consisting of netting services, automatic clearinghouse arrangements, overdraft protections, treasury, depository, corporate purchasing cards accrued pension fund and other credit cards, cash management, employee benefit plan obligations and similar arrangements, in each case incurred in the Ordinary Course of Businessliabilities;
(f) [reserved]Debt consisting of deferred taxes;
(g) Permitted Contingent ObligationsDebt resulting from endorsements of negotiable instruments received in the ordinary course of business;
(h) intercompany Debt solely among the Obligors; provided, that any such Debt shall be subordinated on terms reasonably satisfactory to the Administrative Agent to the Obligations hereunder (including pursuant to the terms of the Intercompany Subordination Agreementsecured by Purchase Money Liens as permitted in SECTION 5.17(f);
(iA) Debt incurred arising in connection with trade letters of credit, performance letters of credit or similar instruments issued for the financing account of insurance premiums any Foreign Subsidiary in the Ordinary Course ordinary course of Businesssuch Foreign Subsidiary's business, (B) Debt of Foreign Subsidiaries (in addition to Debt owing to the Parent or any Subsidiary of the Parent to the extent permitted in this SECTION 5.20) in an aggregate principal amount not to exceed $15,000,000 at any time outstanding, and (C) (without duplication) Guarantees by the Parent, any other Borrower or any Guarantor thereof in an aggregate principal amount not to exceed $10,000,000 at any time outstanding;
(j) Debt owed contingent obligations with respect to any Person providing workers’ compensation, unemployment insurance, health, disability letters of credit 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 Businesssimilar instruments which have been issued but not drawn upon;
(k) Debt in respect as a result of performance bonds, completion guarantees, bid bonds, appeal bonds, surety bonds Interest Rate Protection Agreements and similar obligations, in each case provided in ForEx Contracts as the Ordinary Course of Businesssame are permitted under SECTION 5.16;
(l) [reserved];other Debt in an aggregate principal amount at any time outstanding not exceeding $500,000 in the aggregate for the Borrowers, the Guarantors and all other Subsidiaries; and
(m) [reserved];
(n) [reserved];
(o) preferred stock of Borrower issued prior to the Petition Date and that does not constitute Disqualified Equity Interests, as set forth on Schedule 9.1.4;
(p) Debt consisting of take or pay obligations contained in supply arrangements entered into in the Ordinary Course of Business; provided, that the aggregate amount of all such obligations incurred or arising and outstanding at any time shall not exceed $500,000; provided, further, that no such obligations shall be incurred at any time as out of the Petition Date unless refinancing, extension, renewal or refunding of any Debt permitted by the DIP Orders or other Chapter 11 Order (in each case, in accordance with the Approved Budget);
(q) guarantees required by Governmental Authorities in the Ordinary Course of Business;
(r) [reserved];
(s) Debt arising under Permitted Employment Arrangements in accordance with the Approved Budget, all of which Debt (other than to the extent relating to XXXX/KERP payments approved by the Bankruptcy Court) shall be subordinated on terms acceptable to the Administrative Agent to the Full Payment any of the Obligations;
(t) endorsements for collectionforegoing paragraphs of this SECTION 5.20 so long as, deposit, or negotiation and warranties of products or services, in each case incurred in the Ordinary Course of Business;
(u) rental obligations incurred in the Ordinary Course of Business; provided, that the aggregate amount thereof incurred or arising at any time following the Petition Date shall not exceed $1,500,000 unless previously approved in writing by the Administrative Agent;
(v) [reserved];
(w) trade payables and other current liabilities incurred in the Ordinary Course of Business and in accordance with the Approved Budget;
(x) all interest accruing on (including capitalized interest), and all reasonable and documented fees and expenses payable in connection with, the obligations described in the foregoing clauses (in the case of (1) Debt permitted under clause (ac), the principal amount thereof is not increased from the amount outstanding on the date of refinancing, and in the case of Debt permitted under clauses (i) and (l), the principal amount thereof is not increased in violation of this Section 10.2.1such clauses; provided, without limiting the amounts otherwise included pursuant however, that immediately after giving effect to the definition of Obligations creation, assumption, existence or as provided elsewhere in this Agreement and (2) clause (b) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Prepetition April NPA Debt or Prepetition August NPA Debt)); and
(y) to the extent constituting Debt, obligations under Permitted BTC Hedging Agreement. Notwithstanding anything to the contrary in this Section 10.2.1, no payment shall be made in respect incurrence of any Debt (whether permitted by this SECTION 5.20, no default under this SECTION 5.20 or not such Debt is permitted hereunder) at any time after the Interim DIP Closing Date except in accordance with the Approved BudgetEvent of Default shall have occurred and be continuing.
Appears in 1 contract
Permitted Debt. Create, incur, assume, guarantee or suffer to exist any Debt, except except: the Notes; the Fleet Facility Debt; Subordinated Debt incurred or arising pursuant to clauses (a) through (x) below (provided, that, in existing on the case of any such Debt incurred or arising at any time on or after the Petition Date, such Debt shall only be permitted hereunder if no Default or Event of Default shall exist or be continuing as Closing Date and consisting solely of the time that such Debt is to be incurred Convertible Debentures and the Senior Subordinated Notes; accounts payable by the Company or to arise, or shall occur upon, or as a result of, such Debt being incurred or arising):
(a) the Obligations;
(b) the Prepetition NPA Facility Debt;
(c) any (i) Debt incurred to finance the acquisition, construction, or improvement of any fixed or capital assets (whether or not constituting Purchase Money Debt), including Capital Lease Obligations and (ii) Debt assumed in connection with the acquisition of any of its Subsidiaries to trade creditors that are not aged more than 30 days from the foregoing assets or secured by a Lien on any such assets prior to the acquisition thereof; provided, that no Debt shall be incurred pursuant hereto at any time after the Petition Date unless permitted pursuant to the applicable Chapter 11 Approvals, and no payments in respect thereof shall be made except to the extent in accordance with the Financial Covenants; and provided, further, that the aggregate principal amount of Debt incurred in reliance on this clause (c) after the Petition Date and the creditor payments related thereto are set forth in, and made pursuant to and in accordance with, the Approved Budget;
(d) Debt incurred prior to the Petition Date; provided, that if any such Debt exceeds an aggregate principal amount of $100,000, a description of such Debt is set forth on Schedule 10.2.1 hereof;
(e) Debt with respect to Debt in respect of netting services, automatic clearinghouse arrangements, overdraft protections, treasury, depository, corporate purchasing cards and other credit cards, cash management, and similar arrangementsdue date, in each case incurred in the Ordinary Course of Business;
(f) [reserved];
(g) Permitted Contingent Obligations;
(h) intercompany Debt solely among Business and paid within such time period, unless the Obligorssame are being Properly Contested; provided, that any such Debt shall be subordinated on terms reasonably satisfactory to the Administrative Agent to the Obligations hereunder (including pursuant to the terms of the Intercompany Subordination Agreement);
(i) Debt incurred in connection with the financing of insurance premiums in the Ordinary Course of Business;
(j) Debt owed to any Person providing workers’ compensation, unemployment insurance, 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;
(k) Debt in respect of performance bonds, completion guarantees, bid bonds, appeal bonds, surety bonds and similar obligations, in each case provided in the Ordinary Course of Business;
(l) [reserved];
(m) [reserved];
(n) [reserved];
(o) preferred stock of Borrower issued prior to the Petition Date and that does not constitute Disqualified Equity Interests, as set forth on Schedule 9.1.4;
(p) Debt consisting of take or pay obligations contained in supply arrangements entered into in the Ordinary Course of Business; provided, that the aggregate amount of all such obligations incurred or arising and outstanding at any time shall not exceed $500,000; provided, further, that no such obligations shall be incurred at any time as of the Petition Date unless Rentals permitted by the DIP Orders or Section 9.2(n); Permitted Purchase Money Debt; Debt for accrued payroll, Taxes, and other Chapter 11 Order (in each case, in accordance with the Approved Budget);
(q) guarantees required by Governmental Authorities in the Ordinary Course of Business;
(r) [reserved];
(s) Debt arising under Permitted Employment Arrangements in accordance with the Approved Budget, all of which Debt operating expenses (other than to the extent relating to XXXX/KERP payments approved by the Bankruptcy Courtfor Money Borrowed) shall be subordinated on terms acceptable to the Administrative Agent to the Full Payment of the Obligations;
(t) endorsements for collection, deposit, or negotiation and warranties of products or services, in each case incurred in the Ordinary Course of Business;
(u) rental obligations incurred in the Ordinary Course of Business; provided, that the aggregate amount thereof incurred or arising at any time following the Petition Date shall not exceed $1,500,000 unless previously approved in writing by the Administrative Agent;
(v) [reserved];
(w) trade payables and other current liabilities incurred in the Ordinary Course of Business of the Company or such Subsidiary, including cash management obligations, in each case, so long as payment thereof is not past due and in accordance with the Approved Budget;
(x) all interest accruing on (including capitalized interest)payable unless, and all reasonable and documented fees and expenses payable in connection with, the obligations described in the foregoing clauses (in the case of Taxes only, such Taxes are being Properly Contested; Debt for Money Borrowed by the Company (1other than the Notes, the Fleet Facility Debt and the Subordinated Debt), but only to the extent that such Debt is outstanding on the date of this Agreement and is listed on Schedule 5.16(b) clause (a) hereto; Permitted Contingent Obligations; Extensions of credit in the Ordinary Course of Business arising solely from the payment by SunTrust Bank, in its capacity as a Factor, of amounts on the average due date under its Factoring Agreement with Fabrica; Debt that is not included in any of the preceding paragraphs of this Section 10.2.19.2(c), without limiting is not secured by a Lien (unless such Lien is a Permitted Lien) and does not exceed at any time, in the amounts otherwise included pursuant aggregate, $2,000,000 as to the definition Company and all of Obligations or as provided elsewhere in this Agreement and (2) clause (b) of this Section 10.2.1, without limiting the amounts otherwise included pursuant its Subsidiaries. In addition to the definition foregoing restrictions, the Company shall not permit the aggregate outstanding principal balance of Prepetition April NPA (i) Senior Funded Debt to exceed at any time the Designated Amount of such Senior Funded Debt; or Prepetition August NPA Debt)); and
(yii) all Funded Debt to exceed at any time the extent constituting Debt, obligations under Permitted BTC Hedging Agreement. Notwithstanding anything to the contrary in this Section 10.2.1, no payment shall be made result of (A) $235,000,000 minus (B) all Debt Principal Payments in respect of such Funded Debt. In addition to the foregoing restrictions, the Company shall seek to prevent Chroma Systems Partners, a California general partnership ("CSP"), from creating, incurring, assuming, guaranteeing or permitting to exist any Debt, other than in the ordinary course of business or the mortgage Debt (whether or to be incurred in aggregate principal amount not such Debt is permitted hereunder) at any time after the Interim DIP Closing Date except to exceed $7,500,000 in accordance connection with the Approved Budgetcontemplated mortgage refinancing of the CSP real Property.
Appears in 1 contract
Permitted Debt. Create, incur, guarantee or suffer to exist any Debt, except Debt incurred or arising pursuant to clauses (a) through (x) below (provided, that, in the case of any such Debt incurred or arising at any time on or after the Petition Date, such Debt shall only be permitted hereunder if no Default or Event of Default shall exist or be continuing as of the time that such Debt is to be incurred or to arise, or shall occur upon, or as a result of, such Debt being incurred or arising):except:
(a) the Obligations;
(b) the Prepetition NPA Facility Term Loan Debt;
(c) the Quebec Subordinated Debt in an outstanding amount not to exceed Cdn. $12,000,000 at any time and solely to the extent that such Debt is subject to the Quebec Subordination Agreements; provided that (i) the Quebec Subordinated Debt incurred Documents shall be in form and substance reasonably satisfactory to finance the acquisition, construction, or improvement of any fixed or capital assets (whether or not constituting Purchase Money Debt), including Capital Lease Obligations Agents and the Required Lenders and (ii) Debt assumed in connection with the acquisition of any of the foregoing assets or secured by a Lien on any such assets prior to the acquisition thereof; provided, that no Quebec Subordinated Debt shall be incurred pursuant hereto at any time after the Petition Date unless permitted pursuant subject to the applicable Chapter 11 Approvals, and no payments in respect thereof shall be made except to the extent in accordance with the Financial Covenants; and provided, further, that the aggregate principal amount of Debt incurred in reliance on this clause (c) after the Petition Date and the creditor payments related thereto are set forth in, and made pursuant to and in accordance with, the Approved BudgetQuebec Subordination Agreements;
(d) Debt incurred prior to the Petition Date; provided, that if any such Debt exceeds an aggregate principal amount of $100,000, a description of such Debt is set forth on Schedule 10.2.1 hereofIntercompany Debt;
(e) Debt with respect to Debt in respect of netting services, automatic clearinghouse arrangements, overdraft protections, treasury, depository, corporate purchasing cards and other credit cards, cash management, and similar arrangements, in each case incurred in the Ordinary Course of Business;
(f) [reserved];
(g) Permitted Contingent Obligations;
(h) intercompany Debt solely among the Obligors; provided, that any such Debt shall be subordinated on terms reasonably satisfactory to the Administrative Agent to the Obligations hereunder (including pursuant to the terms of the Intercompany Subordination Agreement);
(i) Debt incurred in connection with the financing of insurance premiums in the Ordinary Course of Business;
(j) Debt owed to any Person providing workers’ compensation, unemployment insurance, 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;
(k) Debt in respect of performance bonds, completion guarantees, bid bonds, appeal bonds, surety bonds and similar obligations, in each case provided in the Ordinary Course of Business;
(l) [reserved];
(m) [reserved];
(n) [reserved];
(o) preferred stock of Borrower issued prior to the Petition Date and that does not constitute Disqualified Equity Interests, as set forth on Schedule 9.1.4;
(p) Debt consisting of take or pay obligations contained in supply arrangements entered into in the Ordinary Course of Business; provided, that the aggregate amount of all such obligations incurred or arising and outstanding at any time shall not exceed $500,000; provided, further, that no such obligations shall be incurred at any time as of the Petition Date unless permitted by the DIP Orders or other Chapter 11 Order (in each case, in accordance with the Approved Budget);
(q) guarantees required by Governmental Authorities in the Ordinary Course of Business;
(r) [reserved];
(s) Debt arising under Permitted Employment Arrangements in accordance with the Approved Budget, all of which Debt (other than to the extent relating to XXXX/KERP payments approved by the Bankruptcy Court) shall be subordinated on terms acceptable to the Administrative Agent to the Full Payment of the Obligations;
(t) endorsements for collection, deposit, deposit or negotiation and warranties of products or services, in each case incurred in the Ordinary Course of Business;
(uf) rental obligations Debt described in Schedule 10.2.1, but not any extensions, renewals or replacements of such Debt except (i) renewals and extensions expressly provided for in the agreements evidencing any such Debt as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Debt if the terms and conditions thereof are not materially less favorable (taken as a whole) to the obligor thereon or to the Lenders than the Debt being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Debt being refinanced or extended; provided that such Debt permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Debt of an obligor that was not an obligor with respect to the Debt being extended, renewed or refinanced, (B) exceed in a principal amount the Debt being renewed, extended or refinanced, except by an amount equal to a premium on or other amount paid and fees and expenses reasonably incurred in connection with such renewal, extension or refinancing or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(g) Debt incurred in connection with the Ordinary Course acquisition, lease or leasing after the Closing Date of Businessany equipment or fixtures by a Loan Party or under any Capital Lease, provided that the aggregate principal amount of such Debt of the Loan Parties shall not exceed the Dollar Equivalent of $15,000,000 at any one time;
(h) [Reserved];
(i) [Reserved];
(j) such other unsecured Debt that is expressly subordinated to the Full Payment of the Obligations on terms and conditions and pursuant to a subordination agreement acceptable to the Agents and the Required Lenders; provided, provided that the aggregate principal amount of such Debt of the Loan Parties shall not exceed the Dollar Equivalent of $15,000,000 at any one time;
(k) unsecured Debt constituting the Management Debt to the extent subject to the Management Subordination Agreement;
(l) such other Additional Subordinated Debt of the Loan Parties; provided that the aggregate principal amount of such Additional Subordinated Debt of the Loan Parties shall not exceed the Dollar Equivalent of $15,000,000 at any one time; and
(m) the Xxxxxxx Debt of the Loan Parties; provided that the aggregate amount thereof incurred or arising at any time following of such Xxxxxxx Debt of the Petition Date Loan Parties shall not exceed the Dollar Equivalent of $1,500,000 unless previously approved in writing by the Administrative Agent;
(v) [reserved];
(w) trade payables and other current liabilities incurred in the Ordinary Course of Business and in accordance with the Approved Budget;
(x) all interest accruing on (including capitalized interest), and all reasonable and documented fees and expenses payable in connection with, the obligations described in the foregoing clauses (in the case of (1) clause (a) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Obligations or as provided elsewhere in this Agreement and (2) clause (b) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Prepetition April NPA Debt or Prepetition August NPA Debt)); and
(y) to the extent constituting Debt, obligations under Permitted BTC Hedging Agreement. Notwithstanding anything to the contrary in this Section 10.2.1, no payment shall be made in respect of any Debt (whether or not such Debt is permitted hereunder) 10,600,000 at any time after the Interim DIP Closing Date except in accordance with the Approved Budgetone time.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Birks & Mayors Inc.)
Permitted Debt. CreateAffiliated Guarantor and Operating Lessee shall be allowed to incur the following indebtedness and obligations (herein “Permitted Debt”), incur, guarantee or suffer to exist any Debt, except Debt incurred or arising pursuant to clauses (a) through (x) below (provided, that, in which other than the case of any such Debt incurred or arising at any time on or after St. Xxxxxxx Loan and the Petition Date, such Debt shall only be permitted hereunder if no Default or Event of Default shall exist or be continuing as of Guaranteed Obligations under the time that such Debt is to be incurred or to arise, or shall occur upon, or as a result of, such Debt being incurred or arising):
(a) the Obligations;
(b) the Prepetition NPA Facility Debt;
(c) any following clause (i) Debt incurred shall not be secured by the Property: (i) the St. Xxxxxxx Note, the Senior Deed of Trust and any related obligations to finance Beneficiary under the acquisitiondocuments evidencing and/or securing the St. Xxxxxxx Loan (the “St. Xxxxxxx Loan Documents”) and the Affiliated Guaranty and this Deed of Trust, construction, or improvement of any fixed or capital assets (whether or not constituting Purchase Money Debt), including Capital Lease Obligations and (ii) Debt assumed unsecured amounts payable for or in connection with the acquisition of any respect of the foregoing assets operation of the Property incurred in the ordinary course of Affiliated Guarantor’s business (“Trade Payables”), paid by Affiliated Guarantor within sixty (60) days of incurrence, provided that in no event shall the aggregate amount of such Trade Payables incurred by Affiliated Guarantor exceed three percent (3%) of the aggregate Loan Amount, (iii) purchase money indebtedness and capital lease obligations incurred in the ordinary course of business and operation of the Property, but in no event shall the annual scheduled debt service on such indebtedness or secured by a Lien on obligations exceed the aggregate amount of Six Hundred Thousand Dollars ($600,000.00), (iv) any such assets prior to the acquisition thereof; provided, that no Debt shall be incurred pursuant hereto at any time after the Petition Date unless permitted pursuant to the applicable Chapter 11 Approvals, and no payments in respect thereof shall be made except to the extent management fees accrued in accordance with the Financial Covenants; terms of the Management Agreement but which are not yet due and providedpayable, further, that (v) Impositions not yet due and payable or delinquent or which are being diligently contested in good faith in accordance with the aggregate principal amount terms and conditions of Debt incurred in reliance on this clause (c) after Section 2.4 of the Petition Date and the creditor payments related thereto are set forth inDeed of Trust, and made pursuant (vi) indebtedness relating to and in accordance with, the Approved Budget;
(d) Debt incurred prior to the Petition Date; provided, that if any such Debt exceeds an aggregate principal amount of $100,000, a description of such Debt is set forth on Schedule 10.2.1 hereof;
(e) Debt with respect to Debt liens in respect of netting services, automatic clearinghouse arrangements, overdraft protections, treasury, depository, corporate purchasing cards and other credit cards, cash management, and similar arrangements, in each case property or assets imposed by law which were incurred in the Ordinary Course ordinary course of Business;
(f) [reserved];
(g) Permitted Contingent Obligations;
(h) intercompany Debt solely among the Obligors; providedbusiness, that any such Debt shall be subordinated on terms reasonably satisfactory to the Administrative Agent to the Obligations hereunder (including pursuant to the terms of the Intercompany Subordination Agreement);
(i) Debt incurred in connection with the financing of insurance premiums as carriers’, warehousemen’s, landlord’s, mechanic’s, materialmen’s, repairmen’s and other similar liens arising in the Ordinary Course ordinary course of Business;
(j) Debt owed to any Person providing business, and liens for workers’ compensation, unemployment insurance, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Personinsurance and similar programs, in each case incurred arising in the Ordinary Course ordinary course of Business;
(k) Debt business which are either not yet due and payable or being diligently contested in good faith in accordance with Section 2.4 of the Deed of Trust. In addition, Affiliated Guarantor shall be allowed to enter into guarantees or provide similar assurances or undertakings in favor of the Manager with respect of performance bonds, completion guarantees, bid bonds, appeal bonds, surety bonds and similar obligations, in each case provided in the Ordinary Course of Business;
(l) [reserved];
(m) [reserved];
(n) [reserved];
(o) preferred stock of Borrower issued prior to the Petition Date and obligations of the Operating Lessee under the Management Agreement provided that does not constitute Disqualified Equity Interests, as set forth on Schedule 9.1.4;
(p) Debt consisting of take or pay obligations contained in supply arrangements entered into in the Ordinary Course of Business; provided, that the aggregate amount of all such obligations incurred or arising and outstanding at any time shall not exceed $500,000; provided, further, that no such obligations shall not be incurred at secured by any time as of the Petition Date unless permitted by the DIP Orders mortgage or other Chapter 11 Order (in each case, in accordance with lien on the Approved Budget);
(q) guarantees required by Governmental Authorities in the Ordinary Course of Business;
(r) [reserved];
(s) Debt arising under Permitted Employment Arrangements in accordance with the Approved Budget, all of which Debt (other than to the extent relating to XXXX/KERP payments approved by the Bankruptcy Court) shall Property except as may be subordinated on terms acceptable to the Administrative Agent to the Full Payment of the Obligations;
(t) endorsements for collection, deposit, or negotiation and warranties of products or services, in each case incurred in the Ordinary Course of Business;
(u) rental obligations incurred in the Ordinary Course of Business; provided, that the aggregate amount thereof incurred or arising at any time following the Petition Date shall not exceed $1,500,000 unless previously approved in writing by the Administrative Agent;
(v) [reserved];
(w) trade payables and other current liabilities incurred in the Ordinary Course of Business and in accordance with the Approved Budget;
(x) all interest accruing on (including capitalized interest), and all reasonable and documented fees and expenses payable in connection with, the obligations described in the foregoing clauses (in the case of (1) clause (a) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Obligations or as provided elsewhere permitted in this Agreement and (2) clause (b) Deed of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Prepetition April NPA Debt or Prepetition August NPA Debt)); and
(y) to the extent constituting Debt, obligations under Permitted BTC Hedging Agreement. Notwithstanding anything to the contrary in this Section 10.2.1, no payment shall be made in respect of any Debt (whether or not such Debt is permitted hereunder) at any time after the Interim DIP Closing Date except in accordance with the Approved BudgetTrust.
Appears in 1 contract
Samples: Subordinate Deed of Trust, Security Agreement and Fixture Filing (Strategic Hotels & Resorts, Inc)
Permitted Debt. Create, incur, assume, guarantee or suffer to exist any Debt, except Debt incurred or arising pursuant to clauses (a) through (x) below (provided, that, in the case of any such Debt incurred or arising at any time on or after the Petition Date, such Debt shall only be permitted hereunder if no Default or Event of Default shall exist or be continuing as of the time that such Debt is to be incurred or to arise, or shall occur upon, or as a result of, such Debt being incurred or arising):except:
(ai) the Obligations;
(bii) the Prepetition NPA Facility DebtSubordinated Notes;
(ciii) any (i) Debt incurred accounts payable by such Borrower or a Subsidiary to finance trade creditors that are not aged more than 90 days from billing date or more than 30 days from the acquisition, construction, or improvement of any fixed or capital assets (whether or not constituting Purchase Money Debt), including Capital Lease Obligations and (ii) Debt assumed in connection with the acquisition of any of the foregoing assets or secured by a Lien on any such assets prior to the acquisition thereof; provided, that no Debt shall be incurred pursuant hereto at any time after the Petition Date unless permitted pursuant to the applicable Chapter 11 Approvals, and no payments in respect thereof shall be made except to the extent in accordance with the Financial Covenants; and provided, further, that the aggregate principal amount of Debt incurred in reliance on this clause (c) after the Petition Date and the creditor payments related thereto are set forth in, and made pursuant to and in accordance with, the Approved Budget;
(d) Debt incurred prior to the Petition Date; provided, that if any such Debt exceeds an aggregate principal amount of $100,000, a description of such Debt is set forth on Schedule 10.2.1 hereof;
(e) Debt with respect to Debt in respect of netting services, automatic clearinghouse arrangements, overdraft protections, treasury, depository, corporate purchasing cards and other credit cards, cash management, and similar arrangementsdue date, in each case incurred in the Ordinary Course of BusinessBusiness and paid within such time period, unless the same are being Properly Contested or are paid in accordance with Borrowers' customary payment practices and are not in default;
(fiv) [reserved]obligations to pay Rentals permitted by SECTION 10.2.14;
(gv) Permitted Purchase Money Debt;
(vi) Debt for accrued payroll, Taxes and other operating expenses (other than for Money Borrowed) incurred in the Ordinary Course of Business of such Borrower or such Subsidiary, including Cash Management Obligations, in each case so long as payment thereof is not past due and payable unless, in the case of Taxes only, such Taxes are being Properly Contested;
(vii) Debt for Money Borrowed by such Obligor (other than the Obligations, Permitted Purchase Money Debt and Subordinated Debt permitted herein), but only to the extent that such Debt is outstanding on the date of this Agreement, as described on Schedule 10.2.3 and is not to be satisfied on or about the Closing Date from the proceeds of the initial Loans;
(viii) Permitted Contingent Obligations;
(hix) intercompany Debt solely among of any Person that is in existence at the Obligors; providedtime that it becomes or is consolidated into or merged with a Subsidiary of such Borrower in a Permitted Acquisition or that is secured by any fixed asset acquired by any Borrower or any Subsidiary at the time of any Permitted Acquisition, provided that any such Debt shall be subordinated on terms reasonably satisfactory to the Administrative Agent to the Obligations hereunder (including pursuant to the terms of the Intercompany Subordination Agreement);
(i) Debt is not incurred in connection with the financing contemplation of insurance premiums in the Ordinary Course such Person becoming a Subsidiary or such acquisition of Business;
(j) Debt owed to such asset by any Person providing workers’ compensation, unemployment insurance, health, disability Borrower 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 any of Business;
(k) Debt in respect of performance bonds, completion guarantees, bid bonds, appeal bonds, surety bonds and similar obligations, in each case provided in the Ordinary Course of Business;
(l) [reserved];
(m) [reserved];
(n) [reserved];
(o) preferred stock of Borrower issued prior to the Petition Date and that does not constitute Disqualified Equity Interestsits Subsidiaries, as set forth on Schedule 9.1.4;
(p) Debt consisting of take or pay obligations contained in supply arrangements entered into in the Ordinary Course of Business; provided, that the aggregate amount of all such obligations incurred or arising and outstanding at any time shall not exceed $500,000; provided, further, that no such obligations shall be incurred at any time as of the Petition Date unless permitted by the DIP Orders or other Chapter 11 Order (in each case, in accordance with the Approved Budget);
(q) guarantees required by Governmental Authorities in the Ordinary Course of Business;
(r) [reserved];
(s) Debt arising under Permitted Employment Arrangements in accordance with the Approved Budget, all of which Debt (other than to the extent relating to XXXX/KERP payments approved by the Bankruptcy Court) shall be subordinated on terms acceptable to the Administrative Agent to the Full Payment of the Obligations;
(t) endorsements for collection, deposit, or negotiation and warranties of products or services, in each case incurred in the Ordinary Course of Business;
(u) rental obligations incurred in the Ordinary Course of Business; provided, that the aggregate amount thereof incurred or arising at any time following the Petition Date shall not exceed $1,500,000 unless previously approved in writing by the Administrative Agent;
(v) [reserved];
(w) trade payables and other current liabilities incurred in the Ordinary Course of Business and in accordance with the Approved Budgetmay be;
(x) all interest accruing on Debt that is not included in any of the preceding paragraphs of this SECTION 10.2.3, is not secured by a Lien (including capitalized interest), unless such Lien is a Permitted Lien) and all reasonable and documented fees and expenses payable in connection with, provided that the obligations sum of the aggregate amount of such Debt plus the aggregate amount of Permitted Purchase Money Debt plus the aggregate amount of Debt described in the foregoing clauses (in the case of (1) clause (aix) of this Section 10.2.1, without limiting the amounts otherwise included pursuant does not exceed at any time $15,000,000 as to the definition all Obligors and all of Obligations or as provided elsewhere in this Agreement and (2) clause (b) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Prepetition April NPA Debt or Prepetition August NPA Debt))their Subsidiaries; and
(yxi) Refinancing Debt so long as each of the Refinancing Conditions is met. None of the provisions of this SECTION 10.2.3 that authorize any Obligor to the extent constituting Debt, obligations under Permitted BTC Hedging Agreement. Notwithstanding anything to the contrary in this Section 10.2.1, no payment incur any Debt shall be made in respect deemed to override, modify or waive any of any Debt (whether or not such Debt is permitted hereunder) at any time after the Interim DIP Closing Date except in accordance with the Approved Budgetprovisions of SECTION 10.3, which shall constitute an independent and separate covenant and obligation of each Borrower.
Appears in 1 contract
Permitted Debt. CreateBorrower and Operating Lessee shall be allowed to incur the following indebtedness and obligations, incur, guarantee or suffer to exist any Debt, except Debt incurred or arising pursuant to clauses (a) through (x) below (provided, that, in which other than the case of any such Debt incurred or arising at any time on or after Loan under the Petition Date, such Debt shall only be permitted hereunder if no Default or Event of Default shall exist or be continuing as of the time that such Debt is to be incurred or to arise, or shall occur upon, or as a result of, such Debt being incurred or arising):
(a) the Obligations;
(b) the Prepetition NPA Facility Debt;
(c) any following clause (i) Debt incurred shall not be secured by the Property: (i) the Loan and any related obligations to finance the acquisitionLender, construction, or improvement of any fixed or capital assets (whether or not constituting Purchase Money Debt), including Capital Lease Obligations and (ii) Debt assumed unsecured amounts payable for or in connection with the acquisition of any respect of the foregoing assets operation of the Property incurred in the ordinary course of Borrower’s business (“Trade Payables”), paid by Borrower within sixty (60) days of incurrence, provided that in no event shall the aggregate amount of such Trade Payables incurred by Borrower exceed three percent (3%) of the aggregate Loan Amount, (iii) purchase money indebtedness and capital lease obligations incurred in the ordinary course of business and operation of the Property, but in no event shall the annual scheduled debt service on such indebtedness or secured by a Lien on obligations exceed the aggregate amount of Five Hundred Thousand Dollars ($500,000.00), (iv) any such assets prior to the acquisition thereof; provided, that no Debt shall be incurred pursuant hereto at any time after the Petition Date unless permitted pursuant to the applicable Chapter 11 Approvals, and no payments in respect thereof shall be made except to the extent management fees accrued in accordance with the Financial Covenants; terms of the Management Agreement but which are not yet due and providedpayable, further, that (v) Impositions not yet due and payable or delinquent or which are being diligently contested in good faith in accordance with the aggregate principal amount terms and conditions of Debt incurred in reliance on this clause (c) after Section 2.4 of the Petition Date and the creditor payments related thereto are set forth inMortgage, and made pursuant (vi) indebtedness relating to and in accordance with, the Approved Budget;
(d) Debt incurred prior to the Petition Date; provided, that if any such Debt exceeds an aggregate principal amount of $100,000, a description of such Debt is set forth on Schedule 10.2.1 hereof;
(e) Debt with respect to Debt liens in respect of netting services, automatic clearinghouse arrangements, overdraft protections, treasury, depository, corporate purchasing cards and other credit cards, cash management, and similar arrangements, in each case property or assets imposed by law which were incurred in the Ordinary Course ordinary course of Business;
(f) [reserved];
(g) Permitted Contingent Obligations;
(h) intercompany Debt solely among the Obligors; providedbusiness, that any such Debt shall be subordinated on terms reasonably satisfactory to the Administrative Agent to the Obligations hereunder (including pursuant to the terms of the Intercompany Subordination Agreement);
(i) Debt incurred in connection with the financing of insurance premiums as carriers’, warehousemen’s, landlord’s, mechanic’s, materialmen’s, repairmen’s and other similar liens arising in the Ordinary Course ordinary course of Business;
(j) Debt owed to any Person providing business, and liens for workers’ compensation, unemployment insurance, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Personinsurance and similar programs, in each case incurred arising in the Ordinary Course ordinary course of Business;
(k) Debt business which are either not yet due and payable or being diligently contested in good faith in accordance with Section 2.4 of the Mortgage. In addition, Borrower shall be allowed to enter into guarantees or provide similar assurances or undertakings in favor of the Manager with respect of performance bonds, completion guarantees, bid bonds, appeal bonds, surety bonds and similar obligations, in each case provided in the Ordinary Course of Business;
(l) [reserved];
(m) [reserved];
(n) [reserved];
(o) preferred stock of Borrower issued prior to the Petition Date and obligations of the Operating Lessee under the Management Agreement provided that does not constitute Disqualified Equity Interests, as set forth on Schedule 9.1.4;
(p) Debt consisting of take or pay obligations contained in supply arrangements entered into in the Ordinary Course of Business; provided, that the aggregate amount of all such obligations incurred or arising and outstanding at any time shall not exceed $500,000; provided, further, that no such obligations shall not be incurred at secured by any time as of the Petition Date unless permitted by the DIP Orders mortgage or other Chapter 11 Order (in each case, in accordance with lien on the Approved Budget);
(q) guarantees required by Governmental Authorities in the Ordinary Course of Business;
(r) [reserved];
(s) Debt arising under Permitted Employment Arrangements in accordance with the Approved Budget, all of which Debt (other than to the extent relating to XXXX/KERP payments approved by the Bankruptcy Court) shall Property except as may be subordinated on terms acceptable to the Administrative Agent to the Full Payment of the Obligations;
(t) endorsements for collection, deposit, or negotiation and warranties of products or services, in each case incurred in the Ordinary Course of Business;
(u) rental obligations incurred in the Ordinary Course of Business; provided, that the aggregate amount thereof incurred or arising at any time following the Petition Date shall not exceed $1,500,000 unless previously approved in writing by the Administrative Agent;
(v) [reserved];
(w) trade payables and other current liabilities incurred in the Ordinary Course of Business and in accordance with the Approved Budget;
(x) all interest accruing on (including capitalized interest), and all reasonable and documented fees and expenses payable in connection with, the obligations described in the foregoing clauses (in the case of (1) clause (a) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Obligations or as provided elsewhere permitted in this Agreement and (2) clause (b) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Prepetition April NPA Debt or Prepetition August NPA Debt)); and
(y) to the extent constituting Debt, obligations under Permitted BTC Hedging Agreement. Notwithstanding anything to the contrary in this Section 10.2.1, no payment shall be made in respect of any Debt (whether or not such Debt is permitted hereunder) at any time after the Interim DIP Closing Date except in accordance with the Approved BudgetMortgage.
Appears in 1 contract
Samples: Mortgage, Security Agreement and Fixture Filing (Strategic Hotels & Resorts, Inc)
Permitted Debt. Create, incur, assume, guarantee or suffer to exist any Debt, except Debt incurred or arising pursuant to clauses (a) through (x) below (provided, that, in the case of any such Debt incurred or arising at any time on or after the Petition Date, such Debt shall only be permitted hereunder if no Default or Event of Default shall exist or be continuing as of the time that such Debt is to be incurred or to arise, or shall occur upon, or as a result of, such Debt being incurred or arising):except:
(ai) the Obligations;
(bii) the Prepetition NPA Facility DebtSenior Notes;
(ciii) any (i) Debt incurred accounts payable by such Borrower or a Subsidiary to finance trade creditors that are not aged more than 90 days from billing date or more than 30 days from the acquisition, construction, or improvement of any fixed or capital assets (whether or not constituting Purchase Money Debt), including Capital Lease Obligations and (ii) Debt assumed in connection with the acquisition of any of the foregoing assets or secured by a Lien on any such assets prior to the acquisition thereof; provided, that no Debt shall be incurred pursuant hereto at any time after the Petition Date unless permitted pursuant to the applicable Chapter 11 Approvals, and no payments in respect thereof shall be made except to the extent in accordance with the Financial Covenants; and provided, further, that the aggregate principal amount of Debt incurred in reliance on this clause (c) after the Petition Date and the creditor payments related thereto are set forth in, and made pursuant to and in accordance with, the Approved Budget;
(d) Debt incurred prior to the Petition Date; provided, that if any such Debt exceeds an aggregate principal amount of $100,000, a description of such Debt is set forth on Schedule 10.2.1 hereof;
(e) Debt with respect to Debt in respect of netting services, automatic clearinghouse arrangements, overdraft protections, treasury, depository, corporate purchasing cards and other credit cards, cash management, and similar arrangementsdue date, in each case incurred in the Ordinary Course of BusinessBusiness and paid within such time period, unless the same are being Properly Contested or are paid in accordance with Borrowers’ customary payment practices and are not in default;
(fiv) [reserved]Debt for rental payments under operating leases incurred in the Ordinary Course of Business of such Borrower or Subsidiary and not secured by a Lien (unless such Lien is a Permitted Lien);
(gv) Permitted Purchase Money Debt;
(vi) Debt for accrued payroll, Taxes and other operating expenses (other than for Money Borrowed) incurred in the Ordinary Course of Business of such Borrower or such Subsidiary, including Cash Management Obligations, in each case so long as payment thereof is not past due and payable unless, in the case of Taxes only, such Taxes are being Properly Contested;
(vii) Debt for Money Borrowed by such Obligor (other than the Obligations, Permitted Purchase Money Debt and Subordinated Debt permitted herein), but only to the extent that such Debt is outstanding on the date of this Agreement, as described on Schedule 10.2.3 and is not to be satisfied on or about the Closing Date from the proceeds of the initial Loans;
(viii) Permitted Contingent Obligations;
(hix) intercompany Debt solely among of any Person that is in existence at the Obligors; providedtime that it becomes or is consolidated into or merged with a Subsidiary of such Borrower in a Permitted Acquisition or that is secured by any fixed asset acquired by any Borrower or any Subsidiary at the time of any Permitted Acquisition, provided that any such Debt shall be subordinated on terms reasonably satisfactory to is not incurred in contemplation of such Person becoming a Subsidiary or such acquisition of such asset by any Borrower or any of its Subsidiaries, as the Administrative Agent to the Obligations hereunder (including pursuant to the terms of the Intercompany Subordination Agreement)case may be;
(x) Debt that is not included in any of the preceding paragraphs of this Section 10.2.3, and is not secured by a Lien (unless such Lien is a Permitted Lien), so long as the sum of the aggregate amount of such Debt plus the aggregate amount of Permitted Purchase Money Debt plus the aggregate amount of Debt described in clause (ix) of Section 10.2.3 does not exceed at any time, as to all Obligors and all of their Subsidiaries, the sum of (i) $50,000,000 plus (ii) 5% of MasTec’s Consolidated Net Assets (as defined under the Indenture); provided that, to the extent that any portion of the unsecured Debt incurred in connection with the financing of insurance premiums in the Ordinary Course of Business;
(j) Debt owed to any Person providing workers’ compensation, unemployment insurance, health, disability or other employee benefits or property, casualty or liability insurance, permitted pursuant to reimbursement this clause (x) of Section 10.2.3 is not scheduled to amortize or indemnification obligations to such Person, in each case incurred in the Ordinary Course of Business;
(k) Debt in respect of performance bonds, completion guarantees, bid bonds, appeal bonds, surety bonds and similar obligations, in each case provided in the Ordinary Course of Business;
(l) [reserved];
(m) [reserved];
(n) [reserved];
(o) preferred stock of Borrower issued mature on or prior to the Petition Date and that does not constitute Disqualified Equity Interestslast day of the Term, as the Dollar limit set forth on Schedule 9.1.4;
(p) Debt consisting herein shall not apply to such portion of take or pay obligations contained such unsecured Debt; and provided further that, in supply arrangements entered into in the Ordinary Course of Business; provided, that no event shall the aggregate amount of all such obligations incurred or arising and outstanding at Debt exceed the maximum aggregate amount of Debt that any time shall not exceed $500,000; provided, further, that no such obligations shall be incurred at any time as of the Petition Date unless Obligors are permitted by to incur under the DIP Orders or other Chapter 11 Order (in each case, in accordance with the Approved Budget)Indenture;
(qxi) guarantees required by Governmental Authorities in the Ordinary Course of Business;
(r) [reserved];
(s) Refinancing Debt arising under Permitted Employment Arrangements in accordance with the Approved Budget, all of which Debt (other than to the extent relating to XXXX/KERP payments approved by the Bankruptcy Court) shall be subordinated on terms acceptable to the Administrative Agent to the Full Payment so long as each of the Obligations;
(t) endorsements for collection, deposit, or negotiation and warranties of products or services, in each case incurred in the Ordinary Course of Business;
(u) rental obligations incurred in the Ordinary Course of Business; provided, that the aggregate amount thereof incurred or arising at any time following the Petition Date shall not exceed $1,500,000 unless previously approved in writing by the Administrative Agent;
(v) [reserved];
(w) trade payables and other current liabilities incurred in the Ordinary Course of Business and in accordance with the Approved Budget;
(x) all interest accruing on (including capitalized interest), and all reasonable and documented fees and expenses payable in connection with, the obligations described in the foregoing clauses (in the case of (1) clause (a) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Obligations or as provided elsewhere in this Agreement and (2) clause (b) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Prepetition April NPA Debt or Prepetition August NPA Debt))Refinancing Conditions is met; and
(yxii) Debt for Money Borrowed provided to Pumpco, by GE Capital Solutions Equipment Finance, a division of General Electric Capital Corporation, or its assignee, secured by equipment and vehicles owned by Pumpco on May 30, 2008, in an aggregate principal amount not to exceed $25,000,000. None of the extent constituting Debt, obligations under Permitted BTC Hedging Agreement. Notwithstanding anything to the contrary in provisions of this Section 10.2.1, no payment 10.2.3 that authorize any Obligor to incur any Debt shall be made deemed to (A) override, modify or waive any of the provisions of Section 10.3, which shall constitute an independent and separate covenant and obligation of each Borrower, or (B) permit any Obligor to incur any Debt in respect violation of any Debt (whether or not such Debt is permitted hereunder) at any time after provision of the Interim DIP Closing Date except in accordance with the Approved BudgetIndenture.
Appears in 1 contract
Permitted Debt. Create, incur, assume, guarantee or suffer to exist any Debt, except Debt incurred or arising pursuant to clauses (a) through (x) below (provided, that, in the case of any such Debt incurred or arising at any time on or after the Petition Date, such Debt shall only be permitted hereunder if no Default or Event of Default shall exist or be continuing as of the time that such Debt is to be incurred or to arise, or shall occur upon, or as a result of, such Debt being incurred or arising):except:
(ai) the Obligations;
(bii) Debt existing on the Prepetition NPA Facility Post-Confirmation Effective Date;
(iii) Permitted Purchase Money Debt;
(civ) any (i) Debt incurred to finance the acquisition, construction, or improvement of any fixed or capital assets (whether or not constituting Purchase Money Debt), including Capital Lease Obligations and (ii) Debt assumed in connection with the acquisition of any of the foregoing assets or secured by a Lien on any such assets prior to the acquisition thereof; provided, that no Debt shall be incurred pursuant hereto at any time after the Petition Date unless permitted pursuant to the applicable Chapter 11 Approvals, and no payments in respect thereof shall be made except to the extent in accordance with the Financial Covenants; and provided, further, that the aggregate principal amount of Debt incurred in reliance on this clause (c) after the Petition Date and the creditor payments related thereto are set forth in, and made pursuant to and in accordance with, the Approved BudgetPermitted Contingent Obligations;
(dv) Debt incurred prior to of any Person that is in existence at the Petition Date; provided, time that if it becomes or is consolidated into or merged with a Subsidiary of such Borrower or that is secured by any asset acquired by any Borrower or any Subsidiary at the time of any such Debt exceeds an aggregate principal amount of $100,000acquisition, a description of provided that such Debt is set forth on Schedule 10.2.1 hereofnot incurred in contemplation of such Person becoming a Subsidiary or such acquisition of such asset by any Borrower or any of its Subsidiaries, as the case may be;
(evi) Debt with respect of an Obligor to any other Obligor or a Subsidiary that is not an Obligor;
(vii) Debt of a Subsidiary that is not an Obligor to another Subsidiary that is not an Obligor;
(viii) Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the Ordinary Course of Business, provided that such Debt is extinguished within 5 Business Days of its incurrence;
(ix) Hedging Agreements entered into in the Ordinary Course of Business and not for speculative purposes;
(x) Debt of a Borrower and its Subsidiaries in respect of netting servicesperformance bonds, automatic clearinghouse arrangementsbid bonds, overdraft protectionsappeal bonds, treasurysurety bonds, depository, corporate purchasing cards and other credit cards, cash management, bankers’ acceptances and similar arrangementsobligations and trade-related letters of credit, in each case provided that such Debt is incurred in the Ordinary Course of Business and not in connection with Debt for Money Borrowed, including those incurred to secure health, safety and environmental obligations in the Ordinary Course of Business;
(f) [reserved];
(g) Permitted Contingent Obligations;
(h) intercompany Debt solely among the Obligors; provided, that any such Debt shall be subordinated on terms reasonably satisfactory to the Administrative Agent to the Obligations hereunder (including pursuant to the terms of the Intercompany Subordination Agreement);
(ixi) Debt incurred in connection with the financing arising from agreements of insurance premiums in the Ordinary Course a Borrower or any Subsidiary of Business;
(j) Debt owed to any Person a Borrower providing workers’ compensationfor indemnification, unemployment insuranceadjustment of purchase price, health, disability earn-outs 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;
(k) Debt in respect of performance bonds, completion guarantees, bid bonds, appeal bonds, surety bonds and similar obligations, in each case provided case, incurred or assumed in connection with the Ordinary Course acquisition of Businessany business, assets or a Subsidiary of a Borrower, other than guarantees of Debt incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary of a Borrower for the purpose of financing such acquisition;
(lxii) [reserved]Debt incurred by a Subsidiary that is not an Obligor which is non-recourse to the Obligors;
(mxiii) [reserved]Debt incurred by a Borrower or any Subsidiary thereof to finance the payment of insurance premiums;
(nxiv) [reserved]Debt of InSight Health under the Senior Notes up to an aggregate principal amount of $315,000,000;
(o) preferred stock of Borrower issued prior to the Petition Date and that does not constitute Disqualified Equity Interests, as set forth on Schedule 9.1.4;
(pxv) Debt consisting of take or pay obligations contained that is not included in supply arrangements entered into in the Ordinary Course of Business; provided, that the aggregate amount of all such obligations incurred or arising and outstanding at any time shall not exceed $500,000; provided, further, that no such obligations shall be incurred at any time as of the Petition Date unless permitted by the DIP Orders or other Chapter 11 Order (in each case, in accordance with the Approved Budget);
(q) guarantees required by Governmental Authorities in the Ordinary Course of Business;
(r) [reserved];
(s) Debt arising under Permitted Employment Arrangements in accordance with the Approved Budget, all of which Debt (other than to the extent relating to XXXX/KERP payments approved by the Bankruptcy Court) shall be subordinated on terms acceptable to the Administrative Agent to the Full Payment of the Obligations;
(t) endorsements for collection, deposit, or negotiation and warranties of products or services, in each case incurred in the Ordinary Course of Business;
(u) rental obligations incurred in the Ordinary Course of Business; provided, that the aggregate amount thereof incurred or arising at any time following the Petition Date shall not exceed $1,500,000 unless previously approved in writing by the Administrative Agent;
(v) [reserved];
(w) trade payables and other current liabilities incurred in the Ordinary Course of Business and in accordance with the Approved Budget;
(x) all interest accruing on (including capitalized interest), and all reasonable and documented fees and expenses payable in connection with, the obligations described in the foregoing clauses (in the case of (1) clause (a) preceding paragraphs of this Section 10.2.110.2.3, without limiting is not secured by a Lien and does not exceed at any time, in the amounts otherwise included pursuant aggregate, the sum of $30,000,000 as to the definition all Borrowers and all of Obligations or as provided elsewhere in this Agreement and (2) clause (b) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Prepetition April NPA Debt or Prepetition August NPA Debt))their Subsidiaries; and
(yxvi) to Refinancing Debt so long as each of the extent constituting Debt, obligations under Permitted BTC Hedging AgreementRefinancing Conditions is met with respect thereto. Notwithstanding anything to None of the contrary in provisions of this Section 10.2.1, no payment 10.2.3 that authorize any Obligor to incur any Debt shall be made in respect deemed to override, modify or waive any of any Debt (whether or not such Debt is permitted hereunder) at any time after the Interim DIP Closing Date except in accordance with the Approved Budgetprovisions of Section 10.3, which shall constitute an independent and separate covenant and obligation of each Borrower.
Appears in 1 contract
Samples: Loan and Security Agreement (Insight Health Services Holdings Corp)
Permitted Debt. CreateTrustor and Operating Lessee shall be allowed to incur the following indebtedness and obligations (herein “Permitted Debt”), incur, guarantee or suffer to exist any Debt, except Debt incurred or arising pursuant to clauses (a) through (x) below (provided, that, in which other than the case of any such Debt incurred or arising at any time on or after Loan and the Petition Date, such Debt shall only be permitted hereunder if no Default or Event of Default shall exist or be continuing as of Trustor Guaranty under the time that such Debt is to be incurred or to arise, or shall occur upon, or as a result of, such Debt being incurred or arising):
(a) the Obligations;
(b) the Prepetition NPA Facility Debt;
(c) any following clause (i) Debt incurred shall not be secured by the Property: (i) the Loan and any related obligations to finance Beneficiary under the acquisitionLoan Documents and the Trustor Guaranty and Subordinate Deed of Trust, construction, or improvement of any fixed or capital assets (whether or not constituting Purchase Money Debt), including Capital Lease Obligations and (ii) Debt assumed unsecured amounts payable for or in connection with the acquisition of any respect of the foregoing assets operation of the Property incurred in the ordinary course of Trustor’s business (“Trade Payables”), paid by Trustor within sixty (60) days of incurrence, provided that in no event shall the aggregate amount of such Trade Payables incurred by Trustor exceed three percent (3%) of the aggregate Loan Amount, (iii) purchase money indebtedness and capital lease obligations incurred in the ordinary course of business and operation of the Property, but in no event shall the annual scheduled debt service on such indebtedness or secured by a Lien on obligations exceed the aggregate amount of Six Hundred Thousand Dollars ($600,000.00), (iv) any such assets prior to the acquisition thereof; provided, that no Debt shall be incurred pursuant hereto at any time after the Petition Date unless permitted pursuant to the applicable Chapter 11 Approvals, and no payments in respect thereof shall be made except to the extent management fees accrued in accordance with the Financial Covenants; terms of the Management Agreement but which are not yet due and providedpayable, further, that (v) Impositions not yet due and payable or delinquent or which are being diligently contested in good faith in accordance with the aggregate principal amount terms and conditions of Debt incurred in reliance on this clause (c) after Section 2.4 of the Petition Date and the creditor payments related thereto are set forth inDeed of Trust, and made pursuant (vi) indebtedness relating to and in accordance with, the Approved Budget;
(d) Debt incurred prior to the Petition Date; provided, that if any such Debt exceeds an aggregate principal amount of $100,000, a description of such Debt is set forth on Schedule 10.2.1 hereof;
(e) Debt with respect to Debt liens in respect of netting services, automatic clearinghouse arrangements, overdraft protections, treasury, depository, corporate purchasing cards and other credit cards, cash management, and similar arrangements, in each case property or assets imposed by law which were incurred in the Ordinary Course ordinary course of Business;
(f) [reserved];
(g) Permitted Contingent Obligations;
(h) intercompany Debt solely among the Obligors; providedbusiness, that any such Debt shall be subordinated on terms reasonably satisfactory to the Administrative Agent to the Obligations hereunder (including pursuant to the terms of the Intercompany Subordination Agreement);
(i) Debt incurred in connection with the financing of insurance premiums as carriers’, warehousemen’s, landlord’s, mechanic’s, materialmen’s, repairmen’s and other similar liens arising in the Ordinary Course ordinary course of Business;
(j) Debt owed to any Person providing business, and liens for workers’ compensation, unemployment insurance, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Personinsurance and similar programs, in each case incurred arising in the Ordinary Course ordinary course of Business;
(k) Debt business which are either not yet due and payable or being diligently contested in good faith in accordance with Section 2.4 of the Deed of Trustt. In addition, Trustor shall be allowed to enter into guarantees or provide similar assurances or undertakings in favor of the Manager with respect of performance bonds, completion guarantees, bid bonds, appeal bonds, surety bonds and similar obligations, in each case provided in the Ordinary Course of Business;
(l) [reserved];
(m) [reserved];
(n) [reserved];
(o) preferred stock of Borrower issued prior to the Petition Date and obligations of the Operating Lessee under the Management Agreement provided that does not constitute Disqualified Equity Interests, as set forth on Schedule 9.1.4;
(p) Debt consisting of take or pay obligations contained in supply arrangements entered into in the Ordinary Course of Business; provided, that the aggregate amount of all such obligations incurred or arising and outstanding at any time shall not exceed $500,000; provided, further, that no such obligations shall not be incurred at secured by any time as of the Petition Date unless permitted by the DIP Orders mortgage or other Chapter 11 Order (in each case, in accordance with lien on the Approved Budget);
(q) guarantees required by Governmental Authorities in the Ordinary Course of Business;
(r) [reserved];
(s) Debt arising under Permitted Employment Arrangements in accordance with the Approved Budget, all of which Debt (other than to the extent relating to XXXX/KERP payments approved by the Bankruptcy Court) shall Property except as may be subordinated on terms acceptable to the Administrative Agent to the Full Payment of the Obligations;
(t) endorsements for collection, deposit, or negotiation and warranties of products or services, in each case incurred in the Ordinary Course of Business;
(u) rental obligations incurred in the Ordinary Course of Business; provided, that the aggregate amount thereof incurred or arising at any time following the Petition Date shall not exceed $1,500,000 unless previously approved in writing by the Administrative Agent;
(v) [reserved];
(w) trade payables and other current liabilities incurred in the Ordinary Course of Business and in accordance with the Approved Budget;
(x) all interest accruing on (including capitalized interest), and all reasonable and documented fees and expenses payable in connection with, the obligations described in the foregoing clauses (in the case of (1) clause (a) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Obligations or as provided elsewhere permitted in this Agreement and (2) clause (b) Deed of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Prepetition April NPA Debt or Prepetition August NPA Debt)); and
(y) to the extent constituting Debt, obligations under Permitted BTC Hedging Agreement. Notwithstanding anything to the contrary in this Section 10.2.1, no payment shall be made in respect of any Debt (whether or not such Debt is permitted hereunder) at any time after the Interim DIP Closing Date except in accordance with the Approved BudgetTrust.
Appears in 1 contract
Samples: Deed of Trust, Security Agreement and Fixture Filing (Strategic Hotels & Resorts, Inc)
Permitted Debt. Create, incur, guarantee or suffer to exist any Debt, except Debt incurred or arising pursuant to clauses (a) through (x) below (provided, that, in the case of any such Debt incurred or arising at any time on or after the Petition Date, such Debt shall only be permitted hereunder if no Default or Event of Default shall exist or be continuing as of the time that such Debt is to be incurred or to arise, or shall occur upon, or as a result of, such Debt being incurred or arising):except:
(a) the Obligations;
(b) the Prepetition NPA Facility DebtRevolving Loan Debt in an amount not to exceed the amount permitted under the Intercreditor Agreement;
(c) the Quebec Subordinated Debt in an outstanding amount not to exceed Cdn. $12,100,000 at any time and solely to the extent that such Debt is subject to the Quebec Subordination Agreements; provided that (i) the Quebec Subordinated Debt incurred Documents shall be in form and substance reasonably satisfactory to finance the acquisitionAgents, construction, or improvement of any fixed or capital assets (whether or not constituting Purchase Money Debt), including Capital Lease Obligations and (ii) Debt assumed in connection with the acquisition of any of the foregoing assets or secured by a Lien on any such assets prior to the acquisition thereof; provided, that no Quebec Subordinated Debt shall be incurred pursuant hereto at any time after the Petition Date unless permitted pursuant subject to the applicable Chapter 11 Approvals, and no payments in respect thereof shall be made except to the extent in accordance with the Financial Covenants; and provided, further, that the aggregate principal amount of Debt incurred in reliance on this clause (c) after the Petition Date and the creditor payments related thereto are set forth in, and made pursuant to and in accordance with, the Approved BudgetQuebec Subordination Agreements;
(d) Debt incurred prior to the Petition Date; provided, that if any such Debt exceeds an aggregate principal amount of $100,000, a description of such Debt is set forth on Schedule 10.2.1 hereofIntercompany Debt;
(e) Debt with respect to Debt in respect of netting services, automatic clearinghouse arrangements, overdraft protections, treasury, depository, corporate purchasing cards and other credit cards, cash management, and similar arrangements, in each case incurred in the Ordinary Course of Business;
(f) [reserved];
(g) Permitted Contingent Obligations;
(h) intercompany Debt solely among the Obligors; provided, that any such Debt shall be subordinated on terms reasonably satisfactory to the Administrative Agent to the Obligations hereunder (including pursuant to the terms of the Intercompany Subordination Agreement);
(i) Debt incurred in connection with the financing of insurance premiums in the Ordinary Course of Business;
(j) Debt owed to any Person providing workers’ compensation, unemployment insurance, 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;
(k) Debt in respect of performance bonds, completion guarantees, bid bonds, appeal bonds, surety bonds and similar obligations, in each case provided in the Ordinary Course of Business;
(l) [reserved];
(m) [reserved];
(n) [reserved];
(o) preferred stock of Borrower issued prior to the Petition Date and that does not constitute Disqualified Equity Interests, as set forth on Schedule 9.1.4;
(p) Debt consisting of take or pay obligations contained in supply arrangements entered into in the Ordinary Course of Business; provided, that the aggregate amount of all such obligations incurred or arising and outstanding at any time shall not exceed $500,000; provided, further, that no such obligations shall be incurred at any time as of the Petition Date unless permitted by the DIP Orders or other Chapter 11 Order (in each case, in accordance with the Approved Budget);
(q) guarantees required by Governmental Authorities in the Ordinary Course of Business;
(r) [reserved];
(s) Debt arising under Permitted Employment Arrangements in accordance with the Approved Budget, all of which Debt (other than to the extent relating to XXXX/KERP payments approved by the Bankruptcy Court) shall be subordinated on terms acceptable to the Administrative Agent to the Full Payment of the Obligations;
(t) endorsements for collection, deposit, deposit or negotiation and warranties of products or services, in each case incurred in the Ordinary Course of Business;
(uf) rental obligations Debt described in Schedule 10.2.1, but not any extensions, renewals or replacements of such Debt except (i) renewals and extensions expressly provided for in the agreements evidencing any such Debt as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Debt if the terms and conditions thereof are not materially less favorable (taken as a whole) to the obligor thereon or to the Lenders than the Debt being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Debt being refinanced or extended; provided that such Debt permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Debt of an obligor that was not an obligor with respect to the Debt being extended, renewed or refinanced, (B) exceed in a principal amount the Debt being renewed, extended or refinanced, except by an amount equal to a premium on or other amount paid and fees and expenses reasonably incurred in connection with such renewal, extension or refinancing or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(g) Debt incurred in connection with the Ordinary Course acquisition, lease or leasing after the Third Amendment Effective Date of Businessany equipment or fixtures by a Loan Party or under any Capital Lease, provided that the aggregate principal amount of such Debt of the Loan Parties shall not exceed the Dollar Equivalent of $15,000,000 at any one time;
(h) [Reserved];
(i) [Reserved];
(j) such other unsecured Debt that is expressly subordinated to the Full Payment of the Obligations on terms and conditions and pursuant to a subordination agreement acceptable to the Agents; provided, provided that the aggregate principal amount of such Debt of the Loan Parties shall not exceed the Dollar Equivalent of $15,000,000 at any time;
(k) unsecured Debt constituting the Management Debt to the extent subject to the Management Subordination Agreement;
(l) such other Additional Subordinated Debt of the Loan Parties; provided that the aggregate principal amount of such Additional Subordinated Debt of the Loan Parties shall not exceed the Dollar Equivalent of $15,000,000 at any one time; and
(m) the Xxxxxxx Debt of the Loan Parties; provided that the aggregate amount thereof incurred or arising at any time following of such Xxxxxxx Debt of the Petition Date Loan Parties shall not exceed the Dollar Equivalent of $1,500,000 unless previously approved in writing by the Administrative Agent;
(v) [reserved];
(w) trade payables and other current liabilities incurred in the Ordinary Course of Business and in accordance with the Approved Budget;
(x) all interest accruing on (including capitalized interest), and all reasonable and documented fees and expenses payable in connection with, the obligations described in the foregoing clauses (in the case of (1) clause (a) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Obligations or as provided elsewhere in this Agreement and (2) clause (b) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Prepetition April NPA Debt or Prepetition August NPA Debt)); and
(y) to the extent constituting Debt, obligations under Permitted BTC Hedging Agreement. Notwithstanding anything to the contrary in this Section 10.2.1, no payment shall be made in respect of any Debt (whether or not such Debt is permitted hereunder) 10,600,000 at any time after the Interim DIP Closing Date except in accordance with the Approved Budgetone time.
Appears in 1 contract
Samples: Term Loan and Security Agreement (Birks Group Inc.)
Permitted Debt. CreateTrustor and Operating Lessee shall be allowed to incur the following indebtedness and obligations (“Permitted Debt”), incur, guarantee or suffer to exist any Debt, except Debt incurred or arising pursuant to clauses (a) through (x) below (provided, that, in which other than the case of any such Debt incurred or arising at any time on or after Loan under the Petition Date, such Debt shall only be permitted hereunder if no Default or Event of Default shall exist or be continuing as of the time that such Debt is to be incurred or to arise, or shall occur upon, or as a result of, such Debt being incurred or arising):
(a) the Obligations;
(b) the Prepetition NPA Facility Debt;
(c) any following clause (i) Debt incurred shall not be secured by the Property: (i) the Loan and any related obligations to finance the acquisitionBeneficiary, construction, or improvement of any fixed or capital assets (whether or not constituting Purchase Money Debt), including Capital Lease Obligations and (ii) Debt assumed unsecured amounts payable for or in connection with the acquisition of any respect of the foregoing assets operation of the Property incurred in the ordinary course of Trustor’s business (“Trade Payables”), paid by Trustor within sixty (60) days of incurrence, provided that in no event shall the aggregate amount of such Trade Payables incurred by Trustor exceed three percent (3%) of the aggregate Loan Amount, (iii) purchase money indebtedness and capital lease obligations incurred in the ordinary course of business and operation of the Property, but in no event shall the annual scheduled debt service on such indebtedness or secured by a Lien on obligations exceed the aggregate amount of $500,000.00, (iv) any such assets prior to the acquisition thereof; provided, that no Debt shall be incurred pursuant hereto at any time after the Petition Date unless permitted pursuant to the applicable Chapter 11 Approvals, and no payments in respect thereof shall be made except to the extent management fees accrued in accordance with the Financial Covenants; terms of the Management Agreement but which are not yet due and providedpayable, further, that (v) Impositions not yet due and payable or delinquent or which are being diligently contested in good faith in accordance with the aggregate principal amount terms and conditions of Debt incurred in reliance on this clause (c) after Section 2.4 of the Petition Date and the creditor payments related thereto are set forth inDeed of Trust, and made pursuant (vi) indebtedness relating to and in accordance with, the Approved Budget;
(d) Debt incurred prior to the Petition Date; provided, that if any such Debt exceeds an aggregate principal amount of $100,000, a description of such Debt is set forth on Schedule 10.2.1 hereof;
(e) Debt with respect to Debt liens in respect of netting services, automatic clearinghouse arrangements, overdraft protections, treasury, depository, corporate purchasing cards and other credit cards, cash management, and similar arrangements, in each case property or assets imposed by law which were incurred in the Ordinary Course ordinary course of Business;
(f) [reserved];
(g) Permitted Contingent Obligations;
(h) intercompany Debt solely among the Obligors; providedbusiness, that any such Debt shall be subordinated on terms reasonably satisfactory to the Administrative Agent to the Obligations hereunder (including pursuant to the terms of the Intercompany Subordination Agreement);
(i) Debt incurred in connection with the financing of insurance premiums as carriers’, warehousemen’s, landlord’s, mechanic’s, materialmen’s, repairmen’s and other similar liens arising in the Ordinary Course ordinary course of Business;
(j) Debt owed to any Person providing business, and liens for workers’ compensation, unemployment insurance, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Personinsurance and similar programs, in each case incurred arising in the Ordinary Course ordinary course of Business;
(k) Debt business which are either not yet due and payable or being diligently contested in good faith in accordance with Section 2.4 of the Deed of Trust. In addition, Trustor shall be allowed to enter into guarantees or provide similar assurances or undertakings in favor of the Manager with respect of performance bonds, completion guarantees, bid bonds, appeal bonds, surety bonds and similar obligations, in each case provided in the Ordinary Course of Business;
(l) [reserved];
(m) [reserved];
(n) [reserved];
(o) preferred stock of Borrower issued prior to the Petition Date and obligations of the Operating Lessee under the Management Agreement provided that does not constitute Disqualified Equity Interests, as set forth on Schedule 9.1.4;
(p) Debt consisting of take or pay obligations contained in supply arrangements entered into in the Ordinary Course of Business; provided, that the aggregate amount of all such obligations incurred or arising and outstanding at any time shall not exceed $500,000; provided, further, that no such obligations shall not be incurred at secured by any time as of the Petition Date unless permitted by the DIP Orders mortgage or other Chapter 11 Order (in each case, in accordance with lien on the Approved Budget);
(q) guarantees required by Governmental Authorities in the Ordinary Course of Business;
(r) [reserved];
(s) Debt arising under Permitted Employment Arrangements in accordance with the Approved Budget, all of which Debt (other than to the extent relating to XXXX/KERP payments approved by the Bankruptcy Court) shall Property except as may be subordinated on terms acceptable to the Administrative Agent to the Full Payment of the Obligations;
(t) endorsements for collection, deposit, or negotiation and warranties of products or services, in each case incurred in the Ordinary Course of Business;
(u) rental obligations incurred in the Ordinary Course of Business; provided, that the aggregate amount thereof incurred or arising at any time following the Petition Date shall not exceed $1,500,000 unless previously approved in writing by the Administrative Agent;
(v) [reserved];
(w) trade payables and other current liabilities incurred in the Ordinary Course of Business and in accordance with the Approved Budget;
(x) all interest accruing on (including capitalized interest), and all reasonable and documented fees and expenses payable in connection with, the obligations described in the foregoing clauses (in the case of (1) clause (a) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Obligations or as provided elsewhere permitted in this Agreement and (2) clause (b) Deed of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Prepetition April NPA Debt or Prepetition August NPA Debt)); and
(y) to the extent constituting Debt, obligations under Permitted BTC Hedging Agreement. Notwithstanding anything to the contrary in this Section 10.2.1, no payment shall be made in respect of any Debt (whether or not such Debt is permitted hereunder) at any time after the Interim DIP Closing Date except in accordance with the Approved BudgetTrust.
Appears in 1 contract
Samples: Deed of Trust, Security Agreement and Fixture Filing (Strategic Hotels & Resorts, Inc)
Permitted Debt. Create, incur, assume, guarantee or suffer to exist any Debt, except Debt incurred or arising pursuant to clauses (a) through (x) below (provided, that, in the case of any such Debt incurred or arising at any time on or after the Petition Date, such Debt shall only be permitted hereunder if no Default or Event of Default shall exist or be continuing as of the time that such Debt is to be incurred or to arise, or shall occur upon, or as a result of, such Debt being incurred or arising):except:
(ai) the Obligations;
(bii) Subordinated Debt that is subject at all times to subordination pursuant to the Prepetition NPA Facility provisions of a Subordination Agreement;
(iii) Permitted Fixed Asset Debt;
(c) any (iiv) Debt incurred to finance the acquisition, construction, or improvement of any fixed or capital assets (whether or not constituting Purchase for Money Debt), including Capital Lease Obligations and (ii) Debt assumed in connection with the acquisition of any of the foregoing assets or secured by a Lien on any such assets prior to the acquisition thereof; provided, that no Debt shall be incurred pursuant hereto at any time after the Petition Date unless permitted pursuant to the applicable Chapter 11 Approvals, and no payments in respect thereof shall be made except to the extent in accordance with the Financial Covenants; and provided, further, that the aggregate principal amount of Debt incurred in reliance on this clause (c) after the Petition Date and the creditor payments related thereto are set forth in, and made pursuant to and in accordance with, the Approved Budget;
(d) Debt incurred prior to the Petition Date; provided, that if any such Debt exceeds an aggregate principal amount of $100,000, a description of such Debt is Borrowed set forth on Schedule 10.2.1 hereof10.2.3;
(e) Debt with respect to Debt in respect of netting services, automatic clearinghouse arrangements, overdraft protections, treasury, depository, corporate purchasing cards and other credit cards, cash management, and similar arrangements, in each case incurred in the Ordinary Course of Business;
(f) [reserved];
(gv) Permitted Contingent Obligations;
(hvi) intercompany unsecured Debt solely among (including earn-out and non-compete payments) to sellers under Permitted Acquisitions;
(vii) Debt from any Obligor to any other Obligor (other than Xxxxxxx Sealing and Xxxxxxxx) in connection with the ordinary course operation of the Obligors; provided, ’ cash management system;
(viii) Debt from any Excess Collateral Provider to any other Excess Collateral Provider (provided that any such Debt shall be is subordinated on terms reasonably satisfactory to the Administrative Agent to the Obligations hereunder (including pursuant to the terms of the Intercompany Subordination Agreement);
(iix) Debt incurred in connection with the financing of insurance premiums in the Ordinary Course of Business;
(j) Debt owed to any Person providing workers’ compensation, unemployment insurance, 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;
(k) Debt in respect of performance bonds, completion guarantees, bid bonds, appeal bonds, surety bonds and similar obligations, in each case provided in the Ordinary Course of Business;
(l) [reserved];
(m) [reserved];
(n) [reserved];
(o) preferred stock of Borrower issued prior to the Petition Date and that does not constitute Disqualified Equity Interests, as set forth on Schedule 9.1.4;
(p) Debt consisting of take or pay obligations contained in supply arrangements entered into in the Ordinary Course of Business; provided, that the aggregate amount of all such obligations incurred or arising and outstanding at any time shall not exceed $500,000; provided, further, that no such obligations shall be incurred at any time as of the Petition Date unless permitted by the DIP Orders or other Chapter 11 Order (in each case, in accordance with the Approved Budget);
(q) guarantees required by Governmental Authorities in the Ordinary Course of Business;
(r) [reserved];
(s) Debt arising under Permitted Employment Arrangements in accordance with the Approved Budget, all of which Debt (other than to the extent relating to XXXX/KERP payments approved by the Bankruptcy Court) shall be subordinated on terms acceptable to the Administrative Agent to the Full Payment of the Obligations;
(t) endorsements for collection, deposit, or negotiation and warranties of products or services, in each case incurred in the Ordinary Course of Business;
(u) rental obligations incurred in the Ordinary Course of Business; provided, that the aggregate amount thereof incurred or arising at any time following the Petition Date shall not exceed $1,500,000 unless previously approved in writing by the Administrative Agent;
(v) [reserved];
(w) trade payables and other current liabilities incurred in the Ordinary Course of Business and in accordance with the Approved BudgetExcess Collateral Provider Loans;
(x) all interest accruing on Debt under the Convertible Debentures in a maximum principal amount of up to $172,500,000;
(including capitalized interest), and all reasonable and documented fees and expenses payable xi) unsecured Debt that is not included in connection with, any of the obligations described in the foregoing clauses (in the case of (1) clause (a) preceding paragraphs of this Section 10.2.110.2.3;
(xii) Debt owing solely by Foreign Subsidiaries, including, without limiting the amounts otherwise included pursuant to the definition of Obligations or as provided elsewhere in this Agreement and (2) clause (b) of this Section 10.2.1limitation, without limiting the amounts otherwise included pursuant to the definition of Prepetition April NPA Debt or Prepetition August NPA Debt))Permitted Foreign Subsidiary Investments; and
(yxiii) to Refinancing Debt so long as each of the extent constituting Debt, obligations under Permitted BTC Hedging AgreementRefinancing Conditions is met with respect thereto. Notwithstanding anything to None of the contrary in provisions of this Section 10.2.1, no payment 10.2.3 that authorize any Obligor to incur any Debt shall be made in respect deemed to override, modify or waive any of any Debt (whether or not such Debt is permitted hereunder) at any time after the Interim DIP Closing Date except in accordance with the Approved Budgetprovisions of Section 10.3, which shall constitute an independent and separate covenant and obligation of each Obligor.
Appears in 1 contract
Samples: Loan and Security Agreement (Enpro Industries, Inc)
Permitted Debt. CreateThe Borrowers and the Guarantors will not, incuror will not permit any other Subsidiary to, guarantee create, assume, incur or suffer to exist any Debt, except Debt incurred or arising pursuant to clauses as follows (the amounts set forth below are in the aggregate for the Borrowers, the Guarantors and all other Subsidiaries).
(a) through (w) Debt owing by any Borrower to any Guarantor, or by any Guarantor to any Borrower or any other Guarantor, (x) below Debt owing by any Subsidiary (provided, thatother than the Borrower or a Guarantor) to any Borrower or any Guarantor, in the case of any an aggregate amount (for all such Debt incurred or arising Subsidiaries) not to exceed $10,000,000 at any time on outstanding, (y) Debt owing by any Subsidiary (other than a Borrower or a Guarantor) to any other Subsidiary (other than a Borrower or a Guarantor), and (z) Debt consisting of Guarantees by Parent, any Borrower or any of its Subsidiaries incurred in the ordinary course of business for the benefit of Parent, any Borrower or any Subsidiary, provided that the primary obligation being guaranteed is permitted by this Agreement, and provided, further, that immediately after giving effect to the Petition Datecreation, such assumption or incurrence of any Debt shall only be permitted hereunder if by clause (x) of this paragraph (a), no Default or Event of Default shall exist or have occurred and be continuing as of the time that such Debt is to be incurred or to arise, or shall occur upon, or as a result of, such Debt being incurred or arising):
(a) the Obligationscontinuing;
(b) Debt to the Prepetition NPA Facility DebtAgent and the Lenders under this Agreement and the other Credit Documents and to Wachovia or the LC Issuer under any document or agreement pertaining to any Letter of Credit or the ForEx Obligations;
(c) any Debt to Persons other than that described in the foregoing clauses (ia) Debt incurred to finance the acquisition, construction, or improvement of any fixed or capital assets (whether or not constituting Purchase Money Debt), including Capital Lease Obligations and (iib) Debt assumed existing on the date of this Agreement and described in connection with the acquisition of any of the foregoing assets or secured by a Lien on any such assets prior to the acquisition thereof; provided, that no Debt shall be incurred pursuant hereto at any time after the Petition Date unless permitted pursuant to the applicable Chapter 11 Approvals, and no payments in respect thereof shall be made except to the extent in accordance with the Financial Covenants; and provided, further, that the aggregate principal amount of Debt incurred in reliance on this clause (c) after the Petition Date and the creditor payments related thereto are set forth in, and made pursuant to and in accordance with, the Approved BudgetSCHEDULE 5.20;
(d) Debt incurred prior to the Petition Date; provided, that if any such Debt exceeds an aggregate principal amount of $100,000, a description of such Debt is set forth on Schedule 10.2.1 hereofSubordinated Debt;
(e) Debt with respect to Debt in respect consisting of netting services, automatic clearinghouse arrangements, overdraft protections, treasury, depository, corporate purchasing cards accrued pension fund and other credit cards, cash management, employee benefit plan obligations and similar arrangements, in each case incurred in the Ordinary Course of Businessliabilities;
(f) [reserved]Debt consisting of deferred taxes;
(g) Permitted Contingent ObligationsDebt resulting from endorsements of negotiable instruments received in the ordinary course of business;
(h) intercompany Debt solely among secured by Purchase Money Liens permitted hereby, not to exceed $5,000,000 in the Obligors; provided, that aggregate incurred during any such Debt shall be subordinated on terms reasonably satisfactory to the Administrative Agent to the Obligations hereunder (including pursuant to the terms Fiscal Year of the Intercompany Subordination Agreement)Parent;
(i) Debt incurred of Foreign Subsidiaries of any Borrower (other than Debt owing to the Parent or any Subsidiary of the Parent), and (without duplication) Guarantees by the Parent thereof (A) in connection an aggregate amount not to exceed $15,000,000 at any time outstanding, and (B) other such Debt in an aggregate amount which, together with Investments in Foreign Subsidiaries permitted under SECTION 5.16(vii)(x), does not exceed $70,000,000; provided, however, that (1) immediately after giving effect to the financing creation, assumption or incurrence of insurance premiums in any Debt permitted by this paragraph (i), no Default or Event of Default shall have occurred and be continuing, and (2) immediately after giving effect to the Ordinary Course creation, incurrence or assumption of Businessany Debt permitted by clause (B) above, there would be Excess Borrowing Availability plus Unrestricted Domestic Cash of at least $50,000,000;
(j) Debt owed contingent obligations with respect to any Person providing workers’ compensation, unemployment insurance, 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 letters of Businesscredit which have been issued but not drawn upon;
(k) other Debt for any Fiscal Year of the Parent, any Borrower or any Guarantor in respect an aggregate amount for all such entities (without duplication) not to exceed $5,000,000; provided, however, that immediately after giving effect to the creation, assumption or incurrence of performance bondsany Debt permitted by this paragraph (k), completion guarantees, bid bonds, appeal bonds, surety bonds no Default or Event of Default shall have occurred and similar obligations, in each case provided in the Ordinary Course of Businessbe continuing;
(l) [reserved];Debt as a result of Interest Rate Protection Agreements and ForEx Contracts as the same are permitted under SECTION 5.17; and
(m) [reserved];
(n) [reserved];
(o) preferred stock of Borrower issued prior to the Petition Date and that does not constitute Disqualified Equity Interests, as set forth on Schedule 9.1.4;
(p) Debt consisting of take or pay obligations contained in supply arrangements entered into in the Ordinary Course of Business; provided, that the aggregate amount of all such obligations incurred or arising and outstanding at any time shall not exceed $500,000; provided, further, that no such obligations shall be incurred at any time as out of the Petition Date unless refinancing, extension, renewal or refunding of any Debt permitted by the DIP Orders or other Chapter 11 Order (in each case, in accordance with the Approved Budget);
(q) guarantees required by Governmental Authorities in the Ordinary Course of Business;
(r) [reserved];
(s) Debt arising under Permitted Employment Arrangements in accordance with the Approved Budget, all of which Debt (other than to the extent relating to XXXX/KERP payments approved by the Bankruptcy Court) shall be subordinated on terms acceptable to the Administrative Agent to the Full Payment any of the Obligations;
(t) endorsements for collectionforegoing paragraphs of this SECTION so long as, deposit, or negotiation and warranties of products or services, in each case incurred in the Ordinary Course of Business;
(u) rental obligations incurred in the Ordinary Course of Business; provided, that the aggregate amount thereof incurred or arising at any time following the Petition Date shall not exceed $1,500,000 unless previously approved in writing by the Administrative Agent;
(v) [reserved];
(w) trade payables and other current liabilities incurred in the Ordinary Course of Business and in accordance with the Approved Budget;
(x) all interest accruing on (including capitalized interest), and all reasonable and documented fees and expenses payable in connection with, the obligations described in the foregoing clauses (in the case of (1) Debt permitted under clause (ac), the principal amount thereof is not increased from the amount outstanding on the date of refinancing, and in the case of Debt permitted under clauses (h), (i) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Obligations or as provided elsewhere in this Agreement and (2) clause (b) k), the principal amount thereof is not increased in violation of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Prepetition April NPA Debt or Prepetition August NPA Debt)); and
(y) to the extent constituting Debt, obligations under Permitted BTC Hedging Agreement. Notwithstanding anything to the contrary in this Section 10.2.1, no payment shall be made in respect of any Debt (whether or not such Debt is permitted hereunder) at any time after the Interim DIP Closing Date except in accordance with the Approved Budgetclauses.
Appears in 1 contract
Permitted Debt. CreateAffiliated Guarantor and Operating Lessee shall be allowed to incur the following indebtedness and obligations (herein “Permitted Debt”), incur, guarantee or suffer to exist any Debt, except Debt incurred or arising pursuant to clauses (a) through (x) below (provided, that, in which other than the case of any such Debt incurred or arising at any time on or after Fairmont Loan and the Petition Date, such Debt shall only be permitted hereunder if no Default or Event of Default shall exist or be continuing as of Guaranteed Obligations under the time that such Debt is to be incurred or to arise, or shall occur upon, or as a result of, such Debt being incurred or arising):
(a) the Obligations;
(b) the Prepetition NPA Facility Debt;
(c) any following clause (i) Debt incurred shall not be secured by the Property: (i) the Fairmont Note, the Senior Mortgage and any related obligations to finance Lender under the acquisitiondocuments evidencing and/or securing the Fairmont Loan (the “Fairmont Loan Documents”) and the Affiliated Guaranty and this Mortgage, construction, or improvement of any fixed or capital assets (whether or not constituting Purchase Money Debt), including Capital Lease Obligations and (ii) Debt assumed unsecured amounts payable for or in connection with the acquisition of any respect of the foregoing assets operation of the Property incurred in the ordinary course of Affiliated Guarantor’s business (“Trade Payables”), paid by Affiliated Guarantor within sixty (60) days of incurrence, provided that in no event shall the aggregate amount of such Trade Payables incurred by Affiliated Guarantor exceed three percent (3%) of the aggregate Loan Amount, (iii) purchase money indebtedness and capital lease obligations incurred in the ordinary course of business and operation of the Property, but in no event shall the annual scheduled debt service on such indebtedness or secured by a Lien on obligations exceed the aggregate amount of Five Hundred Thousand Dollars ($500,000.00), (iv) any such assets prior to the acquisition thereof; provided, that no Debt shall be incurred pursuant hereto at any time after the Petition Date unless permitted pursuant to the applicable Chapter 11 Approvals, and no payments in respect thereof shall be made except to the extent management fees accrued in accordance with the Financial Covenants; terms of the Management Agreement but which are not yet due and providedpayable, further, that (v) Impositions not yet due and payable or delinquent or which are being diligently contested in good faith in accordance with the aggregate principal amount terms and conditions of Debt incurred in reliance on this clause (c) after Section 2.4 of the Petition Date and the creditor payments related thereto are set forth inMortgage, and made pursuant (vi) indebtedness relating to and in accordance with, the Approved Budget;
(d) Debt incurred prior to the Petition Date; provided, that if any such Debt exceeds an aggregate principal amount of $100,000, a description of such Debt is set forth on Schedule 10.2.1 hereof;
(e) Debt with respect to Debt liens in respect of netting services, automatic clearinghouse arrangements, overdraft protections, treasury, depository, corporate purchasing cards and other credit cards, cash management, and similar arrangements, in each case property or assets imposed by law which were incurred in the Ordinary Course ordinary course of Business;
(f) [reserved];
(g) Permitted Contingent Obligations;
(h) intercompany Debt solely among the Obligors; providedbusiness, that any such Debt shall be subordinated on terms reasonably satisfactory to the Administrative Agent to the Obligations hereunder (including pursuant to the terms of the Intercompany Subordination Agreement);
(i) Debt incurred in connection with the financing of insurance premiums as carriers’, warehousemen’s, landlord’s, mechanic’s, materialmen’s, repairmen’s and other similar liens arising in the Ordinary Course ordinary course of Business;
(j) Debt owed to any Person providing business, and liens for workers’ compensation, unemployment insurance, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Personinsurance and similar programs, in each case incurred arising in the Ordinary Course ordinary course of Business;
(k) Debt business which are either not yet due and payable or being diligently contested in good faith in accordance with Section 2.4 of the Mortgage. In addition, Affiliated Guarantor shall be allowed to enter into guarantees or provide similar assurances or undertakings in favor of the Manager with respect of performance bonds, completion guarantees, bid bonds, appeal bonds, surety bonds and similar obligations, in each case provided in the Ordinary Course of Business;
(l) [reserved];
(m) [reserved];
(n) [reserved];
(o) preferred stock of Borrower issued prior to the Petition Date and obligations of the Operating Lessee under the Management Agreement provided that does not constitute Disqualified Equity Interests, as set forth on Schedule 9.1.4;
(p) Debt consisting of take or pay obligations contained in supply arrangements entered into in the Ordinary Course of Business; provided, that the aggregate amount of all such obligations incurred or arising and outstanding at any time shall not exceed $500,000; provided, further, that no such obligations shall not be incurred at secured by any time as of the Petition Date unless permitted by the DIP Orders mortgage or other Chapter 11 Order (in each case, in accordance with lien on the Approved Budget);
(q) guarantees required by Governmental Authorities in the Ordinary Course of Business;
(r) [reserved];
(s) Debt arising under Permitted Employment Arrangements in accordance with the Approved Budget, all of which Debt (other than to the extent relating to XXXX/KERP payments approved by the Bankruptcy Court) shall Property except as may be subordinated on terms acceptable to the Administrative Agent to the Full Payment of the Obligations;
(t) endorsements for collection, deposit, or negotiation and warranties of products or services, in each case incurred in the Ordinary Course of Business;
(u) rental obligations incurred in the Ordinary Course of Business; provided, that the aggregate amount thereof incurred or arising at any time following the Petition Date shall not exceed $1,500,000 unless previously approved in writing by the Administrative Agent;
(v) [reserved];
(w) trade payables and other current liabilities incurred in the Ordinary Course of Business and in accordance with the Approved Budget;
(x) all interest accruing on (including capitalized interest), and all reasonable and documented fees and expenses payable in connection with, the obligations described in the foregoing clauses (in the case of (1) clause (a) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Obligations or as provided elsewhere permitted in this Agreement and (2) clause (b) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Prepetition April NPA Debt or Prepetition August NPA Debt)); and
(y) to the extent constituting Debt, obligations under Permitted BTC Hedging Agreement. Notwithstanding anything to the contrary in this Section 10.2.1, no payment shall be made in respect of any Debt (whether or not such Debt is permitted hereunder) at any time after the Interim DIP Closing Date except in accordance with the Approved BudgetMortgage.
Appears in 1 contract
Samples: Subordinate Mortgage, Security Agreement and Fixture Filing (Strategic Hotels & Resorts, Inc)
Permitted Debt. Create, incur, assume, guarantee or suffer to exist any Debt, except Debt incurred or arising pursuant to clauses (aA) through (x) below (provided, that, in the case of Factors, any such Debt incurred other than the Obligations, Debt owing to Remington pursuant to the Factoring Documents in connection with the purchase by Factors from Remington of Accounts of Remington, subject in all events to the Liens in favor of Agent, Debt arising from a guaranty of the New Senior Notes or arising of Subordinated Debt of Remington that is permitted in Section 10.2.3(ii), and other Debt not to exceed $100,000 in the aggregate at any time outstanding; (B) in the case of Brands, any Debt other than the Obligations, Debt owing under License Agreements entered into by Brands, as licensor, in the Ordinary Course of Business, Debt arising from a guaranty of the New Senior Notes or of Subordinated Debt of Remington that is permitted by Section 10.2.3(ii) and other Debt not to exceed $100,000 at any time outstanding; and (C) in the case of Remington and any Subsidiary of Remington other than Factors and Brands, any Indebtedness other than Debt evidenced by the New Senior Notes and the following Indebtedness:
(i) the Obligations;
(ii) Subordinated Debt existing on the Closing Date (including Debt evidenced by the Existing Subordinated Notes) and Subordinated Debt incurred after the Closing Date to the extent that, after giving effect thereto, no Default or Event of Default exists;
(iii) Debt arising under Hedging Agreements permitted by this Agreement;
(iv) Purchase Money Debt to the extent that it is Permitted Purchase Money Debt;
(v) Debt for Money Borrowed by Remington (other than the Obligations, Permitted Purchase Money Debt, Debt evidenced by the New Senior Notes and Subordinated Debt permitted by this Agreement), but only to the extent that such Debt is outstanding on the date of this Agreement and is not to be satisfied on or after about the Petition DateClosing Date from the proceeds of the initial Revolver Loans hereunder;
(vi) Debt arising from guaranties in connection with up to an aggregate principal amount of $5,000,000 of Debt outstanding at any time incurred by directors, officers, employees, managers or consultants of or to Holding or Remington in connection with any Management Subscription Agreement, and any refinancings, refundings, extensions or renewals thereof;
(vii) Debt in respect of loans made by either Borrower or any Subsidiary to either Borrower or any Subsidiary to the extent that such loans do not constitute Restricted Investments;
(viii) Debt assumed or incurred in connection with Acquisitions to the extent permitted pursuant to Section 10.2.13;
(ix) any renewal or refinancing of Debt for Money Borrowed that is otherwise permitted to be incurred or to exist by any of the foregoing provisions of this Section 10.2.3, provided that such refinancing is in an aggregate principal amount that does not exceed the aggregate principal amount of the Debt plus interest and premiums being renewed or refinanced, the refinancing Debt has a later or equal final maturity and a longer or equal weighted average life than the Debt being renewed or refinanced, the refinancing Debt does not bear a rate of interest that exceeds a market rate (as determined in good faith by a Senior Officer) as of the date of such renewal or refinancing, the refinancing Debt is subordinated to the same extent as the Debt for Money Borrowed to the extent that such Debt shall only be permitted hereunder if for Money Borrowed is itself subordinate to the Obligations, the covenants contained in any instrument or agreement relating to the refinancing Debt are no less favorable to Borrowers (as determined in good faith by a Senior Officer) than those relating to the Debt being renewed or refinanced, and at the time of and after giving effect to such renewal or refinancing, no Default or Event of Default shall exist or be continuing as of the time that such Debt is to be incurred or to arise, or shall occur upon, or as a result of, such Debt being incurred or arising):exist; and
(ax) the Obligations;
(b) the Prepetition NPA Facility Debt;
(c) any (i) Debt incurred to finance the acquisition, construction, or improvement of any fixed or capital assets (whether or Indebtedness not constituting Purchase Money Debt), including Capital Lease Obligations and (ii) Debt assumed included in connection with the acquisition of any of the foregoing assets or provisions of this Section 10.2.3 which is not secured by a Lien on and does not exceed at any such assets prior time, in the aggregate, the sum of $10,000,000. None of the provisions of this Section 10.2.3 that authorize any Obligor to the acquisition thereof; provided, that no incur any Debt shall be incurred pursuant hereto at deemed to override, modify or waive any time after the Petition Date unless permitted pursuant to the applicable Chapter 11 Approvals, and no payments in respect thereof shall be made except to the extent in accordance with the Financial Covenants; and provided, further, that the aggregate principal amount of Debt incurred in reliance on this clause (c) after the Petition Date and the creditor payments related thereto are set forth in, and made pursuant to and in accordance with, the Approved Budget;
(d) Debt incurred prior to the Petition Date; provided, that if any such Debt exceeds an aggregate principal amount of $100,000, a description of such Debt is set forth on Schedule 10.2.1 hereof;
(e) Debt with respect to Debt in respect of netting services, automatic clearinghouse arrangements, overdraft protections, treasury, depository, corporate purchasing cards and other credit cards, cash management, and similar arrangements, in each case incurred in the Ordinary Course of Business;
(f) [reserved];
(g) Permitted Contingent Obligations;
(h) intercompany Debt solely among the Obligors; provided, that any such Debt shall be subordinated on terms reasonably satisfactory to the Administrative Agent to the Obligations hereunder (including pursuant to the terms of the Intercompany Subordination Agreement);
(i) Debt incurred in connection with the financing provisions of insurance premiums in the Ordinary Course Section 10.3, which shall constitute an independent and separate covenant and obligation of Business;
(j) Debt owed to any Person providing workers’ compensation, unemployment insurance, 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;
(k) Debt in respect of performance bonds, completion guarantees, bid bonds, appeal bonds, surety bonds and similar obligations, in each case provided in the Ordinary Course of Business;
(l) [reserved];
(m) [reserved];
(n) [reserved];
(o) preferred stock of Borrower issued prior to the Petition Date and that does not constitute Disqualified Equity Interests, as set forth on Schedule 9.1.4;
(p) Debt consisting of take or pay obligations contained in supply arrangements entered into in the Ordinary Course of Business; provided, that the aggregate amount of all such obligations incurred or arising and outstanding at any time shall not exceed $500,000; provided, further, that no such obligations shall be incurred at any time as of the Petition Date unless permitted by the DIP Orders or other Chapter 11 Order (in each case, in accordance with the Approved Budget);
(q) guarantees required by Governmental Authorities in the Ordinary Course of Business;
(r) [reserved];
(s) Debt arising under Permitted Employment Arrangements in accordance with the Approved Budget, all of which Debt (other than to the extent relating to XXXX/KERP payments approved by the Bankruptcy Court) shall be subordinated on terms acceptable to the Administrative Agent to the Full Payment of the Obligations;
(t) endorsements for collection, deposit, or negotiation and warranties of products or services, in each case incurred in the Ordinary Course of Business;
(u) rental obligations incurred in the Ordinary Course of Business; provided, that the aggregate amount thereof incurred or arising at any time following the Petition Date shall not exceed $1,500,000 unless previously approved in writing by the Administrative Agent;
(v) [reserved];
(w) trade payables and other current liabilities incurred in the Ordinary Course of Business and in accordance with the Approved Budget;
(x) all interest accruing on (including capitalized interest), and all reasonable and documented fees and expenses payable in connection with, the obligations described in the foregoing clauses (in the case of (1) clause (a) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Obligations or as provided elsewhere in this Agreement and (2) clause (b) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Prepetition April NPA Debt or Prepetition August NPA Debt)); and
(y) to the extent constituting Debt, obligations under Permitted BTC Hedging Agreement. Notwithstanding anything to the contrary in this Section 10.2.1, no payment shall be made in respect of any Debt (whether or not such Debt is permitted hereunder) at any time after the Interim DIP Closing Date except in accordance with the Approved BudgetBorrower.
Appears in 1 contract
Permitted Debt. Create, incur, guarantee or suffer to exist any Debt, except Debt incurred or arising pursuant to clauses (a) through (x) below (provided, that, in the case of any such Debt incurred or arising at any time on or after the Petition Date, such Debt shall only be permitted hereunder if no Default or Event of Default shall exist or be continuing as of the time that such Debt is to be incurred or to arise, or shall occur upon, or as a result of, such Debt being incurred or arising):except:
(a) the Obligations;
(b) the Prepetition NPA Facility DebtMortgage Loan Debt;[reserved];
(c) any the Senior Note Debt;
(id) Permitted Purchase Money Debt;
(e) Borrowed Money (other than the Obligations, Mortgage Loan Debt, the Senior Note Debt incurred to finance the acquisition, construction, or improvement of any fixed or capital assets (whether or not constituting and Permitted Purchase Money Debt), including Capital Lease Obligations and (ii) Debt assumed in connection with the acquisition of any of the foregoing assets or secured by a Lien on any such assets prior to the acquisition thereof; provided, that no Debt shall be incurred pursuant hereto at any time after the Petition Date unless permitted pursuant to the applicable Chapter 11 Approvals, and no payments in respect thereof shall be made except but only to the extent in accordance outstanding on the Closing Date, not satisfied with proceeds of the Financial Covenants; initial Loans and provided, further, that the aggregate principal amount of Debt incurred in reliance on this clause (c) after the Petition Date and the creditor payments related thereto are set forth in, and made pursuant to and in accordance with, the Approved Budget;
(d) Debt incurred prior to the Petition Date; provided, that if any such Debt exceeds an aggregate principal amount of $100,000, a description of such Debt is set forth on Schedule 10.2.1 hereof;
(e) Debt with respect to Debt in respect of netting services, automatic clearinghouse arrangements, overdraft protections, treasury, depository, corporate purchasing cards and other credit cards, cash management, and similar arrangements, in each case incurred in the Ordinary Course of Business10.2.1;
(f) [reserved]Bank Product Debt; provided that with respect to such Bank Product Debt in respect of Hedging Agreements, such Obligor is otherwise permitted to enter into such Hedging Agreement pursuant to Section 10.2.15;
(g) Permitted Contingent Obligations;
(h) intercompany Refinancing Debt solely among the Obligors; provided, that any such Debt shall be subordinated on terms reasonably satisfactory to the Administrative Agent to the Obligations hereunder (including pursuant to the terms of the Intercompany Subordination Agreement)as long as each Refinancing Condition is satisfied;
(i) Debt that is not included in any of the preceding clauses of this Section 10.2.1, is not secured by a Lien and the principal amount thereof does not exceed, in the aggregate at any time (x) $10,000,000 minus (y) the then outstanding principal amount of Permitted Purchase Money Debt in excess of $25,000,000;
(j) the guarantee by any Obligor of Debt of another Obligor so long as such Debt was otherwise permitted to be incurred under this Section 10.2.1;
(k) Debt of any Obligor secured by Junior Liens in an aggregate principal amount not to exceed $100,000,000 at any time outstanding; provided that (i) the final maturity of such Debt shall not occur prior to the 60th day following the Termination Date, (ii) there shall be no scheduled amortization or mandatory prepayments or mandatory repayments of such Debt prior to the 60th day following the Termination Date, (iii) 100% of the net proceeds from the issuance of such Debt is applied to the repayment of the outstanding Loans (it being understood that the Commitments shall not be reduced and the net proceeds shall not be required to Cash Collateralize outstanding LC Obligations), (iv) both before and after giving effect to the Junior Debt Documents, no Default or Event of Default shall exist, (v) the obligors on such debt shall be Obligors hereunder, (vii) the holders of such Junior Debt (or a representative thereof) shall have entered into an intercreditor agreement with the Agent, which intercreditor agreement shall be in form and substance reasonably satisfactory to the Agent and the Co-Collateral Agents and (vi) prior to the consummation of any Junior Debt transaction, Agent shall have received an officer’s certificate of the Borrower Agent (in form and substance reasonably satisfactory to Agent) from a Senior Officer of the Borrower Agent certifying that the conditions set forth in this clause (k) are satisfied;
(l) the incurrence by any Obligor of Debt arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or guarantees or letters of credit, surety bonds or performance bonds securing any obligations of any other Obligor pursuant to such agreements, in any case incurred in connection with the disposition of any business, assets or capital stockCapital Stock of any Obligor (other than guarantees of Debt incurred by any Person acquiring all or any portion of such business, assets or capital stockCapital Stock of such Obligor for the purpose of financing such acquisition), so long as the principal amount does not exceed the gross proceeds actually received by any Obligor in connection with such disposition;
(m) the incurrence by any Obligor of Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided, however, that such Debt is extinguished within five Business Days of its Incurrence;
(n) Debt in respect of loans permitted to be made pursuant to Section 10.2.7;
(o) an unsecured guarantee by any Obligor of the obligations of any other Obligor, as tenant, under any Master Lease Agreement;
(p) Convertible Note Debt in an aggregate principal amount not to exceed $100,000,000; provided that (i) the final maturity of such Debt shall not occur prior to the 91st day following the Termination Date, (ii) there shall be no scheduled amortization or mandatory prepayments or mandatory repayments of such Debt prior to the 91st day following the Termination Date, (iii) 100% of the net proceeds from the issuance of such Debt is applied to the repayment of the outstanding Loans (it being understood that the Commitments shall not be reduced and the net proceeds shall not be required to Cash Collateralize outstanding LC Obligations), (iv) both before and after giving effect to the Convertible Debt Documents, no Default or Event of Default shall exist and (v) prior to the consummation of any Convertible Note Debt transaction, Agent shall have received an officer’s certificate of the Borrower Agent (in form and substance reasonably satisfactory to Agent) from a Senior Officer of the Borrower Agent certifying that the conditions set forth in this clause (p) are satisfied;
(q) unsecured Debt owed to sellers constituting consideration for Permitted Acquisitions on terms and conditions reasonably acceptable to Agent;
(r) unsecured Debt consisting of earn-out obligations in connection with any Permitted Acquisition;
(s) Debt of a Person or Debt attaching to assets of a Person that, in either case, becomes a Subsidiary of a Borroweran Obligor after the date hereof as the result of a Permitted Acquisition, provided that such Debt existed at the time such Person became a Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof;
(t) Debt in respect of deferred compensation incurred in the ordinary course of business;
(u) Debt incurred in connection with any sale or disposition of any property in connection with any transaction covered by, but not prohibited by, Section 10.2.23; and
(v) Debt owing to any insurance company in connection with the financing of any insurance premiums permitted by such insurance company in the Ordinary Course ordinary course of Business;
(j) Debt owed to any Person providing workers’ compensation, unemployment insurance, 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;
(k) Debt in respect of performance bonds, completion guarantees, bid bonds, appeal bonds, surety bonds and similar obligations, in each case provided in the Ordinary Course of Business;
(l) [reserved];
(m) [reserved];
(n) [reserved];
(o) preferred stock of Borrower issued prior to the Petition Date and that does not constitute Disqualified Equity Interests, as set forth on Schedule 9.1.4;
(p) Debt consisting of take or pay obligations contained in supply arrangements entered into in the Ordinary Course of Business; provided, that the aggregate amount of all such obligations incurred or arising and outstanding at any time shall not exceed $500,000; provided, further, that no such obligations shall be incurred at any time as of the Petition Date unless permitted by the DIP Orders or other Chapter 11 Order (in each case, in accordance with the Approved Budget);
(q) guarantees required by Governmental Authorities in the Ordinary Course of Business;
(r) [reserved];
(s) Debt arising under Permitted Employment Arrangements in accordance with the Approved Budget, all of which Debt (other than to the extent relating to XXXX/KERP payments approved by the Bankruptcy Court) shall be subordinated on terms acceptable to the Administrative Agent to the Full Payment of the Obligations;
(t) endorsements for collection, deposit, or negotiation and warranties of products or services, in each case incurred in the Ordinary Course of Business;
(u) rental obligations incurred in the Ordinary Course of Business; provided, that the aggregate amount thereof incurred or arising at any time following the Petition Date shall not exceed $1,500,000 unless previously approved in writing by the Administrative Agent;
(v) [reserved];
(w) trade payables and other current liabilities incurred in the Ordinary Course of Business and in accordance with the Approved Budget;
(x) all interest accruing on (including capitalized interest), and all reasonable and documented fees and expenses payable in connection with, the obligations described in the foregoing clauses (in the case of (1) clause (a) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Obligations or as provided elsewhere in this Agreement and (2) clause (b) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Prepetition April NPA Debt or Prepetition August NPA Debt)); and
(y) to the extent constituting Debt, obligations under Permitted BTC Hedging Agreement. Notwithstanding anything to the contrary in this Section 10.2.1, no payment shall be made in respect of any Debt (whether or not such Debt is permitted hereunder) at any time after the Interim DIP Closing Date except in accordance with the Approved Budgetbusiness.
Appears in 1 contract
Permitted Debt. Create, incur, guarantee or suffer to exist any Debt, except Debt incurred or arising pursuant to clauses (a) through (x) below (provided, that, in the case of any such Debt incurred or arising at any time on or after the Petition Date, such Debt shall only be permitted hereunder if no Default or Event of Default shall exist or be continuing as of the time that such Debt is to be incurred or to arise, or shall occur upon, or as a result of, such Debt being incurred or arising):except:
(a) the Obligations;
(b) the Prepetition NPA Facility Revolving Loan Debt;
(c) the Quebec Subordinated Debt in an outstanding amount not to exceed Cdn. $12,100,000 at any time and solely to the extent that such Debt is subject to the Quebec Subordination Agreements; provided that (i) the Quebec Subordinated Debt incurred Documents shall be in form and substance reasonably satisfactory to finance the acquisitionAgents, construction, or improvement of any fixed or capital assets (whether or not constituting Purchase Money Debt), including Capital Lease Obligations and (ii) Debt assumed in connection with the acquisition of any of the foregoing assets or secured by a Lien on any such assets prior to the acquisition thereof; provided, that no Quebec Subordinated Debt shall be incurred pursuant hereto at any time after the Petition Date unless permitted pursuant subject to the applicable Chapter 11 Approvals, and no payments in respect thereof shall be made except to the extent in accordance with the Financial Covenants; and provided, further, that the aggregate principal amount of Debt incurred in reliance on this clause (c) after the Petition Date and the creditor payments related thereto are set forth in, and made pursuant to and in accordance with, the Approved BudgetQuebec Subordination Agreements;
(d) Debt incurred prior to the Petition Date; provided, that if any such Debt exceeds an aggregate principal amount of $100,000, a description of such Debt is set forth on Schedule 10.2.1 hereofIntercompany Debt;
(e) Debt with respect to Debt in respect of netting services, automatic clearinghouse arrangements, overdraft protections, treasury, depository, corporate purchasing cards and other credit cards, cash management, and similar arrangements, in each case incurred in the Ordinary Course of Business;
(f) [reserved];
(g) Permitted Contingent Obligations;
(h) intercompany Debt solely among the Obligors; provided, that any such Debt shall be subordinated on terms reasonably satisfactory to the Administrative Agent to the Obligations hereunder (including pursuant to the terms of the Intercompany Subordination Agreement);
(i) Debt incurred in connection with the financing of insurance premiums in the Ordinary Course of Business;
(j) Debt owed to any Person providing workers’ compensation, unemployment insurance, 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;
(k) Debt in respect of performance bonds, completion guarantees, bid bonds, appeal bonds, surety bonds and similar obligations, in each case provided in the Ordinary Course of Business;
(l) [reserved];
(m) [reserved];
(n) [reserved];
(o) preferred stock of Borrower issued prior to the Petition Date and that does not constitute Disqualified Equity Interests, as set forth on Schedule 9.1.4;
(p) Debt consisting of take or pay obligations contained in supply arrangements entered into in the Ordinary Course of Business; provided, that the aggregate amount of all such obligations incurred or arising and outstanding at any time shall not exceed $500,000; provided, further, that no such obligations shall be incurred at any time as of the Petition Date unless permitted by the DIP Orders or other Chapter 11 Order (in each case, in accordance with the Approved Budget);
(q) guarantees required by Governmental Authorities in the Ordinary Course of Business;
(r) [reserved];
(s) Debt arising under Permitted Employment Arrangements in accordance with the Approved Budget, all of which Debt (other than to the extent relating to XXXX/KERP payments approved by the Bankruptcy Court) shall be subordinated on terms acceptable to the Administrative Agent to the Full Payment of the Obligations;
(t) endorsements for collection, deposit, deposit or negotiation and warranties of products or services, in each case incurred in the Ordinary Course of Business;
(uf) rental obligations Debt described in Schedule 10.2.1, but not any extensions, renewals or replacements of such Debt except (i) renewals and extensions expressly provided for in the agreements evidencing any such Debt as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Debt if the terms and conditions thereof are not materially less favorable (taken as a whole) to the obligor thereon or to the Lenders than the Debt being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Debt being refinanced or extended; provided that such Debt permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Debt of an obligor that was not an obligor with respect to the Debt being extended, renewed or refinanced, (B) exceed in a principal amount the Debt being renewed, extended or refinanced, except by an amount equal to a premium on or other amount paid and fees and expenses reasonably incurred in connection with such renewal, extension or refinancing or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(g) Debt incurred in connection with the Ordinary Course acquisition, lease or leasing after the Second Amendment Effective Date of Businessany equipment or fixtures by a Loan Party or under any Capital Lease, provided that the aggregate principal amount of such Debt of the Loan Parties shall not exceed the Dollar Equivalent of $15,000,000 at any one time;
(h) Reserved;
(i) Reserved;
(j) such other unsecured Debt that is expressly subordinated to the Full Payment of the Obligations on terms and conditions and pursuant to a subordination agreement acceptable to the Agents; provided, provided that the aggregate principal amount of such Debt of the Loan Parties shall not exceed the Dollar Equivalent of $15,000,000 at any time;
(k) unsecured Debt constituting the Management Debt to the extent subject to the Management Subordination Agreement;
(l) such other Additional Subordinated Debt of the Loan Parties; provided that the aggregate principal amount of such Additional Subordinated Debt of the Loan Parties shall not exceed the Dollar Equivalent of $15,000,000 at any one time; and
(m) the Xxxxxxx Debt of the Loan Parties; provided that the aggregate amount thereof incurred or arising at any time following of such Xxxxxxx Debt of the Petition Date Loan Parties shall not exceed the Dollar Equivalent of $1,500,000 unless previously approved in writing by the Administrative Agent;
(v) [reserved];
(w) trade payables and other current liabilities incurred in the Ordinary Course of Business and in accordance with the Approved Budget;
(x) all interest accruing on (including capitalized interest), and all reasonable and documented fees and expenses payable in connection with, the obligations described in the foregoing clauses (in the case of (1) clause (a) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Obligations or as provided elsewhere in this Agreement and (2) clause (b) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Prepetition April NPA Debt or Prepetition August NPA Debt)); and
(y) to the extent constituting Debt, obligations under Permitted BTC Hedging Agreement. Notwithstanding anything to the contrary in this Section 10.2.1, no payment shall be made in respect of any Debt (whether or not such Debt is permitted hereunder) 10,600,000 at any time after the Interim DIP Closing Date except in accordance with the Approved Budgetone time.
Appears in 1 contract
Samples: Term Loan and Security Agreement (Birks & Mayors Inc.)
Permitted Debt. Create, incur, assume, guarantee or suffer to exist any Debt, except Debt incurred or arising pursuant to clauses (a) through (x) below (provided, that, in the case of any such Debt incurred or arising at any time on or after the Petition Date, such Debt shall only be permitted hereunder if no Default or Event of Default shall exist or be continuing as of the time that such Debt is to be incurred or to arise, or shall occur upon, or as a result of, such Debt being incurred or arising):except:
(ai) the Obligations;
(bii) the Prepetition NPA Facility DebtSubordinated Notes;
(ciii) any (i) Debt incurred accounts payable by such Borrower or a Subsidiary to finance trade creditors that are not aged more than 90 days from billing date or more than 30 days from the acquisition, construction, or improvement of any fixed or capital assets (whether or not constituting Purchase Money Debt), including Capital Lease Obligations and (ii) Debt assumed in connection with the acquisition of any of the foregoing assets or secured by a Lien on any such assets prior to the acquisition thereof; provided, that no Debt shall be incurred pursuant hereto at any time after the Petition Date unless permitted pursuant to the applicable Chapter 11 Approvals, and no payments in respect thereof shall be made except to the extent in accordance with the Financial Covenants; and provided, further, that the aggregate principal amount of Debt incurred in reliance on this clause (c) after the Petition Date and the creditor payments related thereto are set forth in, and made pursuant to and in accordance with, the Approved Budget;
(d) Debt incurred prior to the Petition Date; provided, that if any such Debt exceeds an aggregate principal amount of $100,000, a description of such Debt is set forth on Schedule 10.2.1 hereof;
(e) Debt with respect to Debt in respect of netting services, automatic clearinghouse arrangements, overdraft protections, treasury, depository, corporate purchasing cards and other credit cards, cash management, and similar arrangementsdue date, in each case incurred in the Ordinary Course of BusinessBusiness and paid within such time period, unless the same are being Properly Contested or are paid in accordance with Borrowers’ customary payment practices and are not in default;
(fiv) [reserved]Debt for rental payments under operating leases incurred in the Ordinary Course of Business of such Borrower or Subsidiary and not secured by a Lien (unless such Lien is a Permitted Lien);
(gv) Permitted Purchase Money Debt;
(vi) Debt for accrued payroll, Taxes and other operating expenses (other than for Money Borrowed) incurred in the Ordinary Course of Business of such Borrower or such Subsidiary, including Cash Management Obligations, in each case so long as payment thereof is not past due and payable unless, in the case of Taxes only, such Taxes are being Properly Contested;
(vii) Debt for Money Borrowed by such Obligor (other than the Obligations, Permitted Purchase Money Debt and Subordinated Debt permitted herein), but only to the extent that such Debt is outstanding on the date of this Agreement, as described on Schedule 10.2.3 and is not to be satisfied on or about the Closing Date from the proceeds of the initial Loans;
(viii) Permitted Contingent Obligations;
(hix) intercompany Debt solely among of any Person that is in existence at the Obligors; providedtime that it becomes or is consolidated into or merged with a Subsidiary of such Borrower in a Permitted Acquisition or that is secured by any fixed asset acquired by any Borrower or any Subsidiary at the time of any Permitted Acquisition, provided that any such Debt shall be subordinated on terms reasonably satisfactory to is not incurred in contemplation of such Person becoming a Subsidiary or such acquisition of such asset by any Borrower or any of its Subsidiaries, as the Administrative Agent to the Obligations hereunder (including pursuant to the terms of the Intercompany Subordination Agreement)case may be;
(ix) Debt incurred that is not included in connection with any of the financing preceding paragraphs of insurance premiums this Section 10.2.3, is not secured by a Lien (unless such Lien is a Permitted Lien) and provided that the sum of the aggregate amount of such Debt plus the aggregate amount of Permitted Purchase Money Debt plus the aggregate amount of Debt described in the Ordinary Course clause (ix) of Business;
(j) Debt owed this Section does not exceed at any time $30,000,000 as to any Person providing workers’ compensationall Obligors and all of their Subsidiaries, unemployment insurance, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Personand provided further that, in each case incurred in the Ordinary Course of Business;
(k) Debt in respect of performance bonds, completion guarantees, bid bonds, appeal bonds, surety bonds and similar obligations, in each case provided in the Ordinary Course of Business;
(l) [reserved];
(m) [reserved];
(n) [reserved];
(o) preferred stock of Borrower issued prior to the Petition Date and that does not constitute Disqualified Equity Interests, as set forth on Schedule 9.1.4;
(p) Debt consisting of take or pay obligations contained in supply arrangements entered into in the Ordinary Course of Business; provided, that no event shall the aggregate amount of all such obligations incurred or arising and outstanding at Debt exceed the maximum aggregate amount of Debt that any time shall not exceed $500,000; provided, further, that no such obligations shall be incurred at any time as of the Petition Date unless Obligors are permitted by to incur under the DIP Orders or other Chapter 11 Order (in each case, in accordance with the Approved Budget);
(q) guarantees required by Governmental Authorities in the Ordinary Course of Business;
(r) [reserved];
(s) Debt arising under Permitted Employment Arrangements in accordance with the Approved Budget, all of which Debt (other than to the extent relating to XXXX/KERP payments approved by the Bankruptcy Court) shall be subordinated on terms acceptable to the Administrative Agent to the Full Payment of the Obligations;
(t) endorsements for collection, deposit, or negotiation and warranties of products or services, in each case incurred in the Ordinary Course of Business;
(u) rental obligations incurred in the Ordinary Course of Business; provided, that the aggregate amount thereof incurred or arising at any time following the Petition Date shall not exceed $1,500,000 unless previously approved in writing by the Administrative Agent;
(v) [reserved];
(w) trade payables and other current liabilities incurred in the Ordinary Course of Business and in accordance with the Approved Budget;
(x) all interest accruing on (including capitalized interest), and all reasonable and documented fees and expenses payable in connection with, the obligations described in the foregoing clauses (in the case of (1) clause (a) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Obligations or as provided elsewhere in this Agreement and (2) clause (b) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Prepetition April NPA Debt or Prepetition August NPA Debt))Indenture; and
(yxi) to Refinancing Debt so long as each of the extent constituting Debt, obligations under Permitted BTC Hedging AgreementRefinancing Conditions is met. Notwithstanding anything to None of the contrary in provisions of this Section 10.2.1, no payment 10.2.3 that authorize any Obligor to incur any Debt shall be made deemed to (A) override, modify or waive any of the provisions of Section 10.3, which shall constitute an independent and separate covenant and obligation of each Borrower, or (B) permit any Obligor to incur any Debt in respect violation of any Debt (whether or not such Debt is permitted hereunder) at any time after provision of the Interim DIP Closing Date except Indenture.
d. By deleting Section 10.2.9 of the Loan Agreement in accordance with its entirety and by substituting the Approved Budget.following in lieu thereof:
Appears in 1 contract
Permitted Debt. Create, incur, guarantee or suffer to exist any Debt, except Debt incurred or arising pursuant to clauses (a) through (x) below (provided, that, in the case of any such Debt incurred or arising at any time on or after the Petition Date, such Debt shall only be permitted hereunder if no Default or Event of Default shall exist or be continuing as of the time that such Debt is to be incurred or to arise, or shall occur upon, or as a result of, such Debt being incurred or arising):except:
(a) the Obligations;
(b) the Prepetition NPA Facility Mortgage Loan Debt;
(c) any the Senior Note Debt;
(id) Permitted Purchase Money Debt;
(e) Borrowed Money (other than the Obligations, Mortgage Loan Debt, the Senior Note Debt incurred to finance the acquisition, construction, or improvement of any fixed or capital assets (whether or not constituting and Permitted Purchase Money Debt), including Capital Lease Obligations and (ii) Debt assumed in connection with the acquisition of any of the foregoing assets or secured by a Lien on any such assets prior to the acquisition thereof; provided, that no Debt shall be incurred pursuant hereto at any time after the Petition Date unless permitted pursuant to the applicable Chapter 11 Approvals, and no payments in respect thereof shall be made except but only to the extent in accordance outstanding on the Closing Date, not satisfied with proceeds of the Financial Covenants; Term Loans and provided, further, that the aggregate principal amount of Debt incurred in reliance on this clause (c) after the Petition Date and the creditor payments related thereto are set forth in, and made pursuant to and in accordance with, the Approved Budget;
(d) Debt incurred prior to the Petition Date; provided, that if any such Debt exceeds an aggregate principal amount of $100,000, a description of such Debt is set forth on Schedule 10.2.1 hereof;
(e) Debt with respect to Debt in respect of netting services, automatic clearinghouse arrangements, overdraft protections, treasury, depository, corporate purchasing cards and other credit cards, cash management, and similar arrangements, in each case incurred in the Ordinary Course of Business10.2.1;
(f) [reserved]Bank Product Debt; provided that with respect to such Bank Product Debt in respect of Hedging Agreements, such Obligor is otherwise permitted to enter into such Hedging Agreement pursuant to Section 10.2.15;
(g) Permitted Contingent Obligations;
(h) intercompany Refinancing Debt solely among the Obligors; provided, that any such Debt shall be subordinated on terms reasonably satisfactory to the Administrative Agent to the Obligations hereunder (including pursuant to the terms of the Intercompany Subordination Agreement)as long as each Refinancing Condition is satisfied;
(i) Debt that is not included in any of the preceding clauses of this Section 10.2.1, is not secured by a Lien and the principal amount thereof does not exceed, in the aggregate at any time (x) $5,750,000 minus (y) the then outstanding principal amount of Permitted Purchase Money Debt in excess of $23,000,000;
(j) the guarantee by any Obligor of Debt of another Obligor so long as such Debt was otherwise permitted to be incurred under this Section 10.2.1;
(k) Debt under the First Lien Debt Documents;
(l) the incurrence by any Obligor of Debt arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or guarantees or letters of credit, surety bonds or performance bonds securing any obligations of any other Obligor pursuant to such agreements, in any case incurred in connection with the disposition of any business, assets or capital stock of any Obligor (other than guarantees of Debt incurred by any Person acquiring all or any portion of such business, assets or capital stock of such Obligor for the purpose of financing such acquisition), so long as the principal amount does not exceed the gross proceeds actually received by any Obligor in connection with such disposition;
(m) the incurrence by any Obligor of Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided, however, that such Debt is extinguished within five Business Days of its Incurrence;
(n) Debt in respect of loans permitted to be made pursuant to Section 10.2.7;
(o) an unsecured guarantee by any Obligor of the obligations of any other Obligor, as tenant, under any Master Lease Agreement;
(p) Convertible Note Debt in an aggregate principal amount not to exceed $115,000,000; provided that (i) (I) if the Convertible Note Debt is incurred by Parent and not incurred or guaranteed by any other Obligor, the final maturity of such Debt shall not occur prior to June 30, 2013 and (II) if the Convertible Note Debt is incurred or guaranteed by any Obligor other than Parent, the final maturity of such Debt shall not occur prior to May 18, 2014, (ii) (I) if the Convertible Note Debt is incurred by Parent and not incurred or guaranteed by any other Obligor, there shall be no scheduled amortization or mandatory prepayments or mandatory repayments of such Debt prior to June 30, 2013 and (II) if the Convertible Note Debt is incurred or guaranteed by any Obligor other than Parent, there shall be no scheduled amortization or mandatory prepayments or mandatory repayments of such Debt prior to May 18, 2014, (iii) 100% of the net proceeds from the issuance of such Debt is applied to the repayment of the Debt under the First Lien Debt Documents, (iv) both before and after giving effect to the Convertible Debt Documents, no Default or Event of Default shall exist, and (v) prior to the consummation of any Convertible Note Debt transaction, Agent shall have received an officer’s certificate (in form and substance reasonably satisfactory to Agent) from a Senior Officer of the Borrowers certifying that the conditions set forth in this clause (p) are satisfied;
(q) unsecured Debt owed to sellers constituting consideration for Permitted Acquisitions on terms and conditions reasonably acceptable to Agent;
(r) unsecured Debt consisting of earn-out obligations in connection with any Permitted Acquisition;
(s) Debt of a Person or Debt attaching to assets of a Person that, in either case, becomes a Subsidiary of a Borrower after the date hereof as the result of a Permitted Acquisition, provided that such Debt existed at the time such Person became a Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof;
(t) Debt in respect of deferred compensation incurred in the ordinary course of business;
(u) Debt incurred in connection with any sale or disposition of any property in connection with any transaction covered by, but not prohibited by, Section 10.2.23; and
(v) Debt owing to any insurance company in connection with the financing of any insurance premiums permitted by such insurance company in the Ordinary Course ordinary course of Business;
(j) Debt owed to any Person providing workers’ compensationbusiness; provided, unemployment insurancehowever, 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;
(k) Debt in respect of performance bonds, completion guarantees, bid bonds, appeal bonds, surety bonds and similar obligations, in each case provided in the Ordinary Course of Business;
(l) [reserved];
(m) [reserved];
(n) [reserved];
(o) preferred stock of Borrower issued prior to the Petition Date and that does not constitute Disqualified Equity Interests, as set forth on Schedule 9.1.4;
clauses (p) Debt consisting of take or pay obligations contained in supply arrangements entered into in the Ordinary Course of Business; provided, that the aggregate amount of all such obligations incurred or arising and outstanding at any time shall not exceed $500,000; provided, further, that no such obligations shall be incurred at any time as of the Petition Date unless permitted by the DIP Orders or other Chapter 11 Order (in each case, in accordance with the Approved Budget);
(q) guarantees required by Governmental Authorities in the Ordinary Course of Business;
(r) [reserved];
(s) Debt arising under Permitted Employment Arrangements in accordance with the Approved Budget, all of which Debt (other than to the extent relating to XXXX/KERP payments approved by the Bankruptcy Court) shall be subordinated on terms acceptable to the Administrative Agent to the Full Payment of the Obligations;
(t) endorsements for collection, deposit, or negotiation and warranties of products or services, in each case incurred in the Ordinary Course of Business;
(u) rental obligations incurred in the Ordinary Course of Business; provided, that the aggregate amount thereof incurred or arising at any time following the Petition Date shall not exceed $1,500,000 unless previously approved in writing by the Administrative Agent;
through (v) [reserved];
(w) trade payables above shall only apply on and other current liabilities incurred in the Ordinary Course of Business and in accordance with the Approved Budget;
(x) all interest accruing on (including capitalized interest), and all reasonable and documented fees and expenses payable in connection with, the obligations described in the foregoing clauses (in the case of (1) clause (a) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Obligations or as provided elsewhere in this Agreement and (2) clause (b) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Prepetition April NPA Debt or Prepetition August NPA Debt)); and
(y) to the extent constituting Debt, obligations under Permitted BTC Hedging Agreement. Notwithstanding anything to the contrary in this Section 10.2.1, no payment shall be made in respect of any Debt (whether or not such Debt is permitted hereunder) at any time after the Interim DIP Closing Date except in accordance with the Approved BudgetRestatement Date.
Appears in 1 contract
Samples: Second Lien Loan and Security Agreement (Bon Ton Stores Inc)
Permitted Debt. CreateBorrower and Operating Lessee shall be allowed to incur the following indebtedness and obligations (herein “Permitted Debt”), incur, guarantee or suffer to exist any Debt, except Debt incurred or arising pursuant to clauses (a) through (x) below (provided, that, in which other than the case of any such Debt incurred or arising at any time on or after Loan and the Petition Date, such Debt shall only be permitted hereunder if no Default or Event of Default shall exist or be continuing as of Borrower Guaranty under the time that such Debt is to be incurred or to arise, or shall occur upon, or as a result of, such Debt being incurred or arising):
(a) the Obligations;
(b) the Prepetition NPA Facility Debt;
(c) any following clause (i) Debt incurred shall not be secured by the Property: (i) the Loan and any related obligations to finance Lender under the acquisitionLoan Documents and the Borrower Guaranty and Subordinate Mortgage, construction, or improvement of any fixed or capital assets (whether or not constituting Purchase Money Debt), including Capital Lease Obligations and (ii) Debt assumed unsecured amounts payable for or in connection with the acquisition of any respect of the foregoing assets operation of the Property incurred in the ordinary course of Borrower’s business (“Trade Payables”), paid by Borrower within sixty (60) days of incurrence, provided that in no event shall the aggregate amount of such Trade Payables incurred by Borrower exceed three percent (3%) of the aggregate Loan Amount, (iii) purchase money indebtedness and capital lease obligations incurred in the ordinary course of business and operation of the Property, but in no event shall the annual scheduled debt service on such indebtedness or secured by a Lien on obligations exceed the aggregate amount of Five Hundred Thousand Dollars ($500,000.00), (iv) any such assets prior to the acquisition thereof; provided, that no Debt shall be incurred pursuant hereto at any time after the Petition Date unless permitted pursuant to the applicable Chapter 11 Approvals, and no payments in respect thereof shall be made except to the extent management fees accrued in accordance with the Financial Covenants; terms of the Management Agreement but which are not yet due and providedpayable, further, that (v) Impositions not yet due and payable or delinquent or which are being diligently contested in good faith in accordance with the aggregate principal amount terms and conditions of Debt incurred in reliance on this clause (c) after Section 2.4 of the Petition Date and the creditor payments related thereto are set forth inMortgage, and made pursuant (vi) indebtedness relating to and in accordance with, the Approved Budget;
(d) Debt incurred prior to the Petition Date; provided, that if any such Debt exceeds an aggregate principal amount of $100,000, a description of such Debt is set forth on Schedule 10.2.1 hereof;
(e) Debt with respect to Debt liens in respect of netting services, automatic clearinghouse arrangements, overdraft protections, treasury, depository, corporate purchasing cards and other credit cards, cash management, and similar arrangements, in each case property or assets imposed by law which were incurred in the Ordinary Course ordinary course of Business;
(f) [reserved];
(g) Permitted Contingent Obligations;
(h) intercompany Debt solely among the Obligors; providedbusiness, that any such Debt shall be subordinated on terms reasonably satisfactory to the Administrative Agent to the Obligations hereunder (including pursuant to the terms of the Intercompany Subordination Agreement);
(i) Debt incurred in connection with the financing of insurance premiums as carriers’, warehousemen’s, landlord’s, mechanic’s, materialmen’s, repairmen’s and other similar liens arising in the Ordinary Course ordinary course of Business;
(j) Debt owed to any Person providing business, and liens for workers’ compensation, unemployment insurance, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Personinsurance and similar programs, in each case incurred arising in the Ordinary Course ordinary course of Business;
(k) Debt business which are either not yet due and payable or being diligently contested in good faith in accordance with Section 2.4 of the Mortgage. In addition, Borrower shall be allowed to enter into guarantees or provide similar assurances or undertakings in favor of the Manager with respect of performance bonds, completion guarantees, bid bonds, appeal bonds, surety bonds and similar obligations, in each case provided in the Ordinary Course of Business;
(l) [reserved];
(m) [reserved];
(n) [reserved];
(o) preferred stock of Borrower issued prior to the Petition Date and obligations of the Operating Lessee under the Management Agreement provided that does not constitute Disqualified Equity Interests, as set forth on Schedule 9.1.4;
(p) Debt consisting of take or pay obligations contained in supply arrangements entered into in the Ordinary Course of Business; provided, that the aggregate amount of all such obligations incurred or arising and outstanding at any time shall not exceed $500,000; provided, further, that no such obligations shall not be incurred at secured by any time as of the Petition Date unless permitted by the DIP Orders mortgage or other Chapter 11 Order (in each case, in accordance with lien on the Approved Budget);
(q) guarantees required by Governmental Authorities in the Ordinary Course of Business;
(r) [reserved];
(s) Debt arising under Permitted Employment Arrangements in accordance with the Approved Budget, all of which Debt (other than to the extent relating to XXXX/KERP payments approved by the Bankruptcy Court) shall Property except as may be subordinated on terms acceptable to the Administrative Agent to the Full Payment of the Obligations;
(t) endorsements for collection, deposit, or negotiation and warranties of products or services, in each case incurred in the Ordinary Course of Business;
(u) rental obligations incurred in the Ordinary Course of Business; provided, that the aggregate amount thereof incurred or arising at any time following the Petition Date shall not exceed $1,500,000 unless previously approved in writing by the Administrative Agent;
(v) [reserved];
(w) trade payables and other current liabilities incurred in the Ordinary Course of Business and in accordance with the Approved Budget;
(x) all interest accruing on (including capitalized interest), and all reasonable and documented fees and expenses payable in connection with, the obligations described in the foregoing clauses (in the case of (1) clause (a) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Obligations or as provided elsewhere permitted in this Agreement and (2) clause (b) of this Section 10.2.1, without limiting the amounts otherwise included pursuant to the definition of Prepetition April NPA Debt or Prepetition August NPA Debt)); and
(y) to the extent constituting Debt, obligations under Permitted BTC Hedging Agreement. Notwithstanding anything to the contrary in this Section 10.2.1, no payment shall be made in respect of any Debt (whether or not such Debt is permitted hereunder) at any time after the Interim DIP Closing Date except in accordance with the Approved BudgetMortgage.
Appears in 1 contract
Samples: Mortgage, Security Agreement and Fixture Filing (Strategic Hotels & Resorts, Inc)
