Permitted Indebtedness. Borrower shall not create, incur, assume or suffer to exist any Indebtedness, except the following (collectively, “Permitted Indebtedness”): (i) Indebtedness under the Loan Documents, (ii) any Indebtedness set forth on Schedule 7.2, (iii) Capitalized Lease Obligations incurred after the Closing Date and Indebtedness incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that the aggregate outstanding amount of such Capitalized Lease Obligations and purchase money indebtedness incurred after the Closing Date shall not exceed $1,000,000, (iv) Indebtedness in connection with advances made by a stockholder in order to cure any default of the financial covenants set forth on Annex I; provided, however, that such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lender; (v) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 120 calendar days from the billing date or more than 30 days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower’s independent accountants shall have been reserved; (vi) borrowings incurred in the ordinary course of business and not exceeding $50,000 individually or in the aggregate outstanding at any one time, provided, however, that such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lender; and (vii)
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Occupational Health & Rehabilitation Inc)
Permitted Indebtedness. Borrower Purchaser shall not create, incur, assume or suffer to exist any Indebtedness, except the following (collectively, “Permitted Indebtedness”): (i) Indebtedness under the Loan Acquisition Documents, (ii) any Indebtedness set forth on Schedule 7.2, (iii) Capitalized Lease Obligations incurred after the Closing Date and Indebtedness incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that the aggregate outstanding amount of such Capitalized Lease Obligations and purchase money indebtedness incurred after the Closing Date outstanding at any time shall not exceed $1,000,00075,000, (iv) Indebtedness in connection with advances made by a stockholder in order to cure any default of the financial covenants set forth on Annex I; provided, however, that such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of LenderSeller’s rights pursuant to a subordination agreement in form and substance satisfactory to LenderSeller; (v) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 120 calendar days from the billing date or more than 30 days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by BorrowerPurchaser’s independent accountants shall have been reserved; (vi) borrowings incurred in the ordinary course of business and not exceeding $50,000 40,000 individually or in the aggregate outstanding at any one time, provided, however, that such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of LenderSeller’s rights pursuant to a subordination agreement in form and substance satisfactory to LenderSeller; and (vii)) Permitted Subordinated Debt and (viii) Indebtedness under the Credit Agreement. Purchaser shall not make prepayments on any existing or future Indebtedness to any Person other than (i) to Capital Source in accordance with the terms of the Credit Agreement, (ii) to Seller subject to the terms of the Master Subordination Agreement, or (iii) to the Debenture Holder subject to the terms of the Junior Subordination Agreement or (iv) to the extent specifically permitted by this Agreement or any subsequent agreement between Purchaser and Seller.
Appears in 1 contract
Permitted Indebtedness. No Borrower shall not create, incur, assume or suffer to exist any IndebtednessIndebtedness for Borrowed Money, except the following (collectively, “Permitted Indebtedness”"PERMITTED INDEBTEDNESS"): (ia) Indebtedness under the Loan Documents, ; (iib) guaranty Indebtedness under the Mezzanine Loan; (c) any Indebtedness set forth on Schedule 7.27.2 and any Indebtedness which refinances or replaces such Indebtedness to the extent such refinanced Indebtedness does not increase the total principal amount thereof, extend the maturity date, accelerate the amortization or is otherwise on terms and conditions which are not materially more onerous to the Borrowers (iii"PERMITTED REFINANCED INDEBTEDNESS"); (d) (i) Capitalized Lease Obligations incurred after the Closing Date and Indebtedness incurred pursuant to purchase money Liens permitted by Section 7.3(v)) and any Permitted Refinanced Indebtedness with respect thereto, provided that the aggregate amount thereof outstanding amount of such Capitalized Lease Obligations and purchase money indebtedness incurred after the Closing Date at any time shall not exceed $1,000,000, 5,000,000; (ivii) Indebtedness on a non-recourse (other than customary carve-outs for non-recourse financings) basis to any assets of any Borrower or any Guarantor other than the asset or assets that are collateral securing such Indebtedness and which is secured by a Lien permitted pursuant to Section 7.3(v) and any Permitted Refinancing Indebtedness with respect thereto and (iii) Indebtedness incurred in connection with the Eureka Transaction; provided that the aggregate amount outstanding at any time under 7.2(d)(ii) plus 7.2(d)(iii) shall not exceed $30,000,000; (e) Indebtedness in connection with advances made by a stockholder in order to cure any default of the financial covenants set forth on Annex I; provided, however, that such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender’s Agent's rights pursuant to a subordination agreement and in form and substance reasonably satisfactory to LenderAgent; (v) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 120 calendar days from the billing date or more than 30 days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower’s independent accountants shall have been reserved; (vif) borrowings incurred in the ordinary course of business and not exceeding $50,000 10,000,000 individually or in the aggregate outstanding at any one time, ; provided, however, that such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender’s Agent's rights pursuant to a subordination agreement and in form and substance satisfactory to LenderAgent; (g) Indebtedness from time to time owing to any Borrower; (h) Indebtedness of any Borrower arising out of an Interest Rate Agreement entered into in the ordinary course of business; (i) Subordinated Debt, provided, however, the aggregate principal amount of Subordinated Debt (I) evidenced by the Indenture and the Indenture Notes and any Permitted Refinanced Indebtedness with respect thereto shall not exceed $106,761,608 and (vii)II) evidenced by the Bergen Note and any Permitted Refinanced Indebtedness with respect thereto shall not exceed $1,237,325.46, (j) Indebtedness constituting Priority Claims; (k) Indebtedness in respect of insurance premiums payable to the Insurance Subsidiary in an aggregate amount not to exceed $10,000,000 and (k) additional unsecured Indebtedness in the ordinary course of business in an aggregate amount not to exceed $2,000,000. Notwithstanding anything in this Section 7.2 or this Agreement to the contrary, the aggregate amount of Indebtedness for Borrowed Money of Borrowers on a Consolidated Basis, exclusive of the Obligations and the "Obligations" as such term is defined in the Revolving Loan B Agreement, shall not exceed $255,000,000 in the aggregate.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Skilled Healthcare Group Inc)
Permitted Indebtedness. Borrower shall not create, incur, assume or suffer to exist any Indebtedness, except the following (collectively, “Permitted Indebtedness”): (i) Indebtedness under the Loan Documents, (ii) any Indebtedness set forth on Schedule 7.2, (iii) the incurrence by Borrower of additional unsecured Indebtedness and letters of credit in an aggregate principal amount at any one time outstanding under this clause (iii) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of Borrower thereunder) not to exceed $10,000,000 plus the aggregate amount of all repayments, optional or mandatory, of the principal of any Indebtedness set forth on Schedule 7.2 (other than repayments that are concurrently reborrowed), (iv) Capitalized Lease Obligations incurred after the Closing Date and Indebtedness incurred pursuant to that is secured by purchase money Liens permitted in connection with the purchase by Section 7.3(v)Borrower of equipment in the normal course of business, provided that the aggregate amount thereof outstanding amount of such Capitalized Lease Obligations and purchase money indebtedness incurred after the Closing Date at any time shall not exceed $1,000,000, (ivv) Indebtedness in connection with advances made by a stockholder in order to cure any default of the financial covenants set forth on Annex I; provided, however, that such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender’s rights pursuant to a subordination agreement and in form and substance satisfactory to Lender; (vvi) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 120 one hundred twenty (120) calendar days from the billing date or more than 30 thirty (30) days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower’s independent accountants shall have been reserved; (vi) borrowings incurred in the ordinary course of business and not exceeding $50,000 individually or in the aggregate outstanding at any one time, provided, however, that such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lender; and (vii)) any Permitted Refinancing Indebtedness.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Women First Healthcare Inc)
Permitted Indebtedness. Borrower No Credit Party shall not create, incur, assume or suffer to exist any Indebtedness, except the following (collectively, “Permitted Indebtedness”): ), each category of which is cumulative to all other categories: (i) Indebtedness under the Loan Documents, (ii) any Indebtedness set forth on Schedule 7.27.2 to the Disclosure Schedule, (iii) Capitalized Lease Obligations incurred after the Closing Date and Indebtedness incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that the aggregate outstanding amount of such Capitalized Lease Obligations and purchase money indebtedness incurred after the Closing Date outstanding at any time shall not exceed $1,000,000250,000, (iv) Indebtedness in connection with advances made by a stockholder in order to cure any default of the financial covenants set forth on Annex I; provided, however, that such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance reasonably satisfactory to Lender; (v) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 120 calendar days from the billing date or more than 30 days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower’s the Credit Parties’ independent accountants shall have been reserved; and (vi) borrowings incurred in the ordinary course of business and not exceeding $50,000 25,000 individually or in the aggregate outstanding at any one time, provided, however, that such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance reasonably satisfactory to Lender; and (vii)
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Rita Medical Systems Inc)
Permitted Indebtedness. Borrower The Issuer shall not create, incur, assume create or incur or suffer to exist or cause to be created, incurred or suffered to exist any Indebtedness, Indebtedness except the following (collectively, “"Permitted Issuer Indebtedness”): "):
(ia) Indebtedness under the Loan Documents, (ii) any Indebtedness set forth on Schedule 7.2, (iii) Capitalized Lease Obligations incurred after the Closing Date and Indebtedness incurred pursuant to purchase money Liens permitted this Indenture and the Initial Bonds;
(b) Indebtedness incurred pursuant to Additional Bonds issued in accordance with the provisions of Section 2.3;
(c) Indebtedness provided that:
(i) an Authorized Officer of the Issuer certifies to the Bond Trustee in writing that no Default or Event of Default has occurred and is continuing or will occur after giving effect to the incurrence of such Indebtedness and the application of the net proceeds thereof;
(ii) an Authorized Officer of the Issuer certifies to the Bond Trustee in writing that after giving effect to the incurrence of such Indebtedness, the minimum annual Projected Debt Service Coverage Ratio for each fiscal year through the Final Maturity Date for the Bonds (starting in the fiscal year in which the Indebtedness is incurred) with the longest maturity, will not be less than 1.5 to 1; and
(iii) written confirmation from each Rating Agency then rating the Bonds that the incurrence of such Indebtedness will not result in a Rating Downgrade.
(d) Indebtedness related to Permitted Liens;
(e) Indebtedness represented by Section 7.3(v)interest rate protection agreements with respect to other Permitted Issuer Indebtedness;
(f) Indebtedness in the form of a working capital facility in an aggregate principal amount not to exceed, at any one time outstanding, (i) $40,000,000 (Escalated)plus (ii) upon the acquisition of an Additional Guarantor or additional district energy assets, 5% of the Indebtedness incurred by the Issuer in connection with such acquisition; provided that the aggregate outstanding principal amount of such Capitalized Lease Obligations and purchase money indebtedness incurred after the Closing Date shall not exceed $1,000,000, (iv) Indebtedness in connection with advances made by a stockholder in order to cure any default of the financial covenants set forth on Annex I; provided, however, that such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies reduced to all of zero for five (5) days each year;
(g) Indebtedness owed to the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to LenderSubsidiary Guarantor or any Additional Guarantor; (v) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 120 calendar days from the billing date or more than 30 days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower’s independent accountants shall have been reserved; (vi) borrowings incurred in the ordinary course of business and not exceeding $50,000 individually or in the aggregate outstanding at any one time, provided, however, that such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lender; and (vii)and
Appears in 1 contract
Permitted Indebtedness. Borrower shall not create, incur, assume or suffer to exist any Indebtedness, except the following (collectively, “Permitted Indebtedness”): (i) Indebtedness under the Loan Documents, (ii) any Indebtedness set forth on Schedule 7.2, (iii) Capitalized Lease Obligations incurred after the Closing Date April 30, 2004 and Indebtedness incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that the aggregate outstanding amount of such Capitalized Lease Obligations and purchase money indebtedness incurred after the Closing Date outstanding at any time shall not exceed $1,000,000150,000, (iv) Indebtedness in connection with advances made by a stockholder in order to cure any default of the financial covenants set forth on Annex I; provided, however, that such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lender; (v) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 120 calendar days from the billing date or more than 30 days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower’s independent accountants shall have been reserved; (vi) borrowings incurred in the ordinary course of business and not exceeding $50,000 10,000 individually or in the aggregate outstanding at any one time, provided, however, that such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lender; (vii) Permitted Subordinated Debt or Indebtedness to US Bioservices Corporation evidenced by the US Bio Note as permitted under the Joint Venture Dissolution Consent and (vii)viii) Indebtedness consisting of unsecured Deferred Purchase Price Obligations not to exceed $250,000 outstanding at any time; provided, however, that the deposit of monies in escrow or the establishment of holdbacks for purchase price adjustments shall not be deemed to constitute security for such Indebtedness and the amount thereof shall not be included in the computation of the foregoing $250,000 allowance. Borrower shall not make prepayments on any existing or future Indebtedness in excess of $10,000 to any Person other than to Lender or to the extent specifically permitted by this Agreement or any subsequent agreement between Borrower and Lender.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (NationsHealth, Inc.)
Permitted Indebtedness. Neither the Borrower shall not nor any Subsidiary will create, incur, assume incur or suffer to exist any Indebtedness, except except, without duplication and without duplication as to the following Borrower and Subsidiaries:
(collectivelya) The Obligations;
(b) Unsecured Indebtedness existing on the ThirdFourth Amendment Effective Date and described on Schedule 7.1(g) attached hereto;
(c) Derivatives Contracts entered into in respect of the Obligations;
(d) Indebtedness of the Borrower owed to a Subsidiary Guarantor, “Permitted Indebtedness”): Indebtedness of a Subsidiary Guarantor owed to the Borrower and Indebtedness of a Subsidiary Guarantor owed to a Subsidiary Guarantor; provided, however, that (a) any Indebtedness of the Borrower owed to a Subsidiary Guarantor is unsecured and subordinated to the Borrower’s Obligations hereunder in a manner satisfactory to the Administrative Agent, and (b) upon any such Subsidiary Guarantor ceasing to be a Subsidiary Guarantor or such Indebtedness being owed to any Person other than the Borrower or a Subsidiary Guarantor, the Borrower or such Subsidiary Guarantor hereunder, as applicable, shall be deemed to have incurred Indebtedness not permitted by this clause (d);
(e) Trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(f) Indebtedness with respect to Letters of Credit;
(g) Indebtedness consisting of Taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of the Borrower’s or any Subsidiary’s business;
(h) Performance bonds, completion bonds, other bonds customarily used by the Borrower in its trade or business, surety and appeal bonds, guarantees of performance and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) Indebtedness arising under the Loan Documents, a guarantee of indebtedness of any Joint Venture (ii) any Indebtedness set forth on Schedule 7.2, (iii) Capitalized Lease Obligations incurred after the Closing Date and Indebtedness incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that such guarantee shall be deemed to be an investment in such Joint Venture and subject to the aggregate outstanding amount limitations in clause (e) of such Capitalized Lease Obligations the definition of Permitted Investments and purchase money indebtedness incurred after the Closing Date shall not exceed $1,000,000, Section 10.1(e));
(ivj) Indebtedness in connection with advances made arising from the honoring by a stockholder bank or other financial institution of a check, draft or similar instrument inadvertently (except in order to cure any default the case of daylight overdrafts) drawn against insufficient funds in the financial covenants set forth on Annex Iordinary course of business; provided, however, that such Indebtedness shall be on an unsecured basis, subordinated is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in right connection with endorsement of repayment and remedies to all of the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lender; (v) accounts payable to trade creditors and current operating expenses (other than instruments for borrowed money) which are not aged more than 120 calendar days from the billing date or more than 30 days from the due date, in each case incurred deposit in the ordinary course of business business;
(l) (i) Capitalized Lease Obligations and paid within (ii) Non-Recourse Indebtedness secured by purchase money Liens on any Property (other than any Borrowing Base Property) hereafter acquired or the assumption of any Lien on Property (other than any Borrowing Base Property) existing at the time of such acquisition (and not created in contemplation of such acquisition), provided that (1) the amount outstanding under clauses (i) and (ii) shall not exceed the Threshold Amount in the aggregate at any time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, (2) with respect thereto as are required by GAAP and deemed adequate by Borrower’s independent accountants to Indebtedness incurred under clause (ii) above, (X) any Property securing such Indebtedness shall have been reserved; (vi) borrowings incurred acquired by the Borrower or any Subsidiary in the ordinary course of its respective business and not exceeding $50,000 individually the Lien on any such Property shall attach to such asset concurrently or in within ninety (90) days after the aggregate outstanding at any one timeacquisition thereof, provided, however, that (Y) the amount of such Indebtedness shall be on an not exceed such purchase price or cost of any Property securing such Indebtedness, and (Z) each Lien shall attach only to the Property so acquired;
(m) Indebtedness with respect to letters of credit (other than Letters of Credit); provided that (i) the aggregate face amount of such letters of credit does not exceed $10,000,000 at any time, (ii) such Indebtedness is unsecured basisor cash-secured and (iii) if cash-secured, subordinated in right of repayment and remedies the cash used to all secure such Indebtedness is excluded (to the extent otherwise included) from the calculations of the Obligations and to all of Lender’s rights pursuant to a subordination agreement Borrowing Base or the financial covenants set forth in form and substance satisfactory to Lender; and (vii)Section 10.1;
Appears in 1 contract
Sources: Fifth Amended and Restated Credit Agreement (LGI Homes, Inc.)
Permitted Indebtedness. Notice Addresses for Administrative Agent, Issuing Lenders, Swingline Lender and Collateral Agent A Form of Security Agreement B Form of Assignment and Assumption C Form of Compliance Certificate C-1 Form of Exemption Certificate C-2 Form of Exemption Certificate C-3 Form of Exemption Certificate C-4 Form of Exemption Certificate D-1 Form of First Lien/Second Lien Intercreditor Agreement D-2 Form of Terms of Intercreditor (pari passu) E Form of Prepayment Notice F-1 Form of Revolving Loan Note F-2 Form of Term Loan Note F-3 Form of Swingline Note G Form of Guarantor Joinder Agreement H Form of Borrowing and Conversion/Continuation Request I Form of Solvency Certificate J Form of Global Intercompany Note K Form of Co-Borrower shall not createJoinder L Form of Borrower Assignment FIRST LIEN CREDIT AGREEMENT (this “Agreement”), incurdated as of August 1, assume or suffer 2018, among Severin Holdings, LLC, a Delaware limited liability company (“Holdings”), Severin Acquisition, LLC, a Delaware limited liability company (the “Top Borrower”), PeopleAdmin, Inc., a Delaware corporation (the “PA Borrower”), Promachos Holding, Inc., a Delaware corporation (“PeopleAdmin”) and Performance Matters LLC, a Utah limited liability company (“Performance Matters”), certain other Restricted Subsidiaries (this and each other capitalized term used herein without definition having the meaning assigned to exist any Indebtednesssuch term in Section 1.1) from time to time designated hereunder as Co-Borrowers (together with the Top Borrower, except the following (PA Borrower, PeopleAdmin and Performance Matters, each a “Borrower” and, collectively, the “Permitted IndebtednessBorrowers”): (i) Indebtedness under the Loan Documents, (ii) any Indebtedness set forth on Schedule 7.2, (iii) Capitalized Lease Obligations incurred after the Closing Date and Indebtedness incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that the aggregate outstanding amount Subsidiary Guarantors from time to time party hereto (including through delivery of such Capitalized Lease Obligations a Guarantor Joinder Agreement in accordance with the terms of this Agreement), the several banks, financial institutions, institutional investors and purchase money indebtedness incurred after other entities from time to time party hereto as lenders (the Closing Date shall not exceed $1,000,000“Lenders”), (iv) Indebtedness in connection with advances made by a stockholder in order the Issuing Lenders from time to cure any default of time party hereto, the financial covenants set forth on Annex I; providedSwingline Lender and Barclays Bank PLC, however, that such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lender; (v) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 120 calendar days from the billing date or more than 30 days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower’s independent accountants shall have been reserved; (vi) borrowings incurred in the ordinary course of business and not exceeding $50,000 individually or in the aggregate outstanding at any one time, provided, however, that such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lender; and (vii)Administrative Agent.
Appears in 1 contract
Sources: First Lien Credit Agreement (Powerschool Holdings, Inc.)
Permitted Indebtedness. Borrower shall not create, incur, assume or suffer to exist any Indebtedness, except the following (collectively, “"Permitted Indebtedness”"): (i) Indebtedness under the Loan Documents, (ii) any Indebtedness set forth on Schedule 7.2, (iii) Capitalized Lease Obligations incurred after the Closing Date and Indebtedness incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that the aggregate amount thereof outstanding amount of such Capitalized Lease Obligations and purchase money indebtedness incurred after the Closing Date at any time shall not exceed $1,000,0002,500,000, (iv) Indebtedness in connection with advances made by a stockholder in order to cure any default of the financial covenants set forth on Annex I; provided, however, that such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender’s 's rights pursuant to a subordination agreement and in form and substance satisfactory to Lender; (v) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 120 calendar days from the billing date or more than 30 days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower’s 's independent accountants shall have been reserved; (vi) borrowings incurred in the ordinary course of business and not exceeding $50,000 25,000 individually or in the aggregate outstanding at any one time, ; provided, however, that such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender’s 's rights pursuant to a subordination agreement and in form and substance satisfactory to Lender; and (vii) Permitted Subordinated Debt which can be repaid with respect to any Foreign Subsidiary, unless prohibited by this Agreement or any other Loan Document. Borrower shall not make prepayments on any existing or future Indebtedness to any Person other than to Lender or to the extent specifically permitted by this Agreement or any subsequent agreement between Borrower and Lender).
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Synavant Inc)
Permitted Indebtedness. Borrower Neither Obligor shall not create, incur, assume or suffer to exist any Indebtedness, except the following (collectively, “Permitted Indebtedness”): (i) Indebtedness under the Loan Debenture Documents, (ii) any Indebtedness set forth on Schedule 7.2, (iii) Capitalized Lease Obligations incurred after the Closing Date and Indebtedness incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that the aggregate outstanding amount of such Capitalized Lease Obligations and purchase money indebtedness incurred after the Closing Date outstanding at any time shall not exceed $1,000,000150,000, (iv) Indebtedness in connection with advances made by a stockholder in order to cure any default of the financial covenants set forth on Annex I; provided, however, that such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of LenderDebenture Holder’s rights pursuant to a subordination agreement in form and substance satisfactory to LenderDebenture Holder; (v) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 120 calendar days from the billing date or more than 30 days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower’s the Obligors’ independent accountants shall have been reserved; (vi) borrowings incurred in the ordinary course of business and not exceeding $50,000 80,000 individually or in the aggregate outstanding at any one time, provided, however, that such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of LenderDebenture Holder’s rights pursuant to a subordination agreement in form and substance satisfactory to LenderDebenture Holder; (vii) Permitted Subordinated Debt and (vii)viii) Indebtedness under the Credit Agreement. Neither Obligor shall make prepayments on any existing or future Indebtedness to any Person other than (i) to Capital Source in accordance with the terms of the Credit Agreement, (ii) to Seller subject to the terms of the Master Subordination Agreement , or (iii) to the Debenture Holder subject to the terms of the Master Subordination Agreement and the Junior Subordination Agreement or (iv) to the extent specifically permitted by this Agreement.
Appears in 1 contract
Permitted Indebtedness. Neither the Borrower shall not nor any Subsidiary will create, incur, assume incur or suffer to exist any Indebtedness, except except, without duplication and without duplication as to the following Borrower and Subsidiaries:
(collectivelya) The Obligations;
(b) Unsecured Indebtedness existing on the AgreementThird Amendment Effective Date and described on Schedule 7.1(g) attached hereto;
(c) Derivatives Contracts entered into in respect of the Obligations;
(d) Indebtedness of the Borrower owed to a Subsidiary Guarantor, “Permitted Indebtedness”): Indebtedness of a Subsidiary Guarantor owed to the Borrower and Indebtedness of a Subsidiary Guarantor owed to a Subsidiary Guarantor; provided, however, that (a) any Indebtedness of the Borrower owed to a Subsidiary Guarantor is unsecured and subordinated to the Borrower’s Obligations hereunder in a manner satisfactory to the Administrative Agent, and (b) upon any such Subsidiary Guarantor ceasing to be a Subsidiary Guarantor or such Indebtedness being owed to any Person other than the Borrower or a Subsidiary Guarantor, the Borrower or such Subsidiary Guarantor hereunder, as applicable, shall be deemed to have incurred Indebtedness not permitted by this clause (d);
(e) Trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(f) Indebtedness with respect to Letters of Credit;
(g) Indebtedness consisting of Taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of the Borrower’s or any Subsidiary’s business;
(h) Performance bonds, completion bonds, other bonds customarily used by the Borrower in its trade or business, surety and appeal bonds, guarantees of performance and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) Indebtedness arising under the Loan Documents, a guarantee of indebtedness of any Joint Venture (ii) any Indebtedness set forth on Schedule 7.2, (iii) Capitalized Lease Obligations incurred after the Closing Date and Indebtedness incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that such guarantee shall be deemed to be an investment in such Joint Venture and subject to the aggregate outstanding amount limitations in clause (e) of such Capitalized Lease Obligations the definition of Permitted Investments and purchase money indebtedness incurred after the Closing Date shall not exceed $1,000,000, Section 10.1(e));
(ivj) Indebtedness in connection with advances made arising from the honoring by a stockholder bank or other financial institution of a check, draft or similar instrument inadvertently (except in order to cure any default the case of daylight overdrafts) drawn against insufficient funds in the financial covenants set forth on Annex Iordinary course of business; provided, however, that such Indebtedness shall be on an unsecured basis, subordinated is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in right connection with endorsement of repayment and remedies to all of the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lender; (v) accounts payable to trade creditors and current operating expenses (other than instruments for borrowed money) which are not aged more than 120 calendar days from the billing date or more than 30 days from the due date, in each case incurred deposit in the ordinary course of business business;
(l) (i) Capitalized Lease Obligations and paid within (ii) Non-Recourse Indebtedness secured by purchase money Liens on any Property (other than any Borrowing Base Property) hereafter acquired or the assumption of any Lien on Property (other than any Borrowing Base Property) existing at the time of such acquisition (and not created in contemplation of such acquisition), provided that (1) the amount outstanding under clauses (i) and (ii) shall not exceed the Threshold Amount in the aggregate at any time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, (2) with respect thereto as are required by GAAP and deemed adequate by Borrower’s independent accountants to Indebtedness incurred under clause (ii) above, (X) any Property securing such Indebtedness shall have been reserved; (vi) borrowings incurred acquired by the Borrower or any Subsidiary in the ordinary course of its respective business and not exceeding $50,000 individually the Lien on any such Property shall attach to such asset concurrently or in within ninety (90) days after the aggregate outstanding at any one timeacquisition thereof, provided, however, that (Y) the amount of such Indebtedness shall be on an not exceed such purchase price or cost of any Property securing such Indebtedness, and (Z) each Lien shall attach only to the Property so acquired;
(m) Indebtedness with respect to letters of credit (other than Letters of Credit); provided that (i) the aggregate face amount of such letters of credit does not exceed $10,000,000 at any time, (ii) such Indebtedness is unsecured basisor cash-secured and (iii) if cash-secured, subordinated in right of repayment and remedies the cash used to all secure such Indebtedness is excluded (to the extent otherwise included) from the calculations of the Obligations and to all of Lender’s rights pursuant to a subordination agreement Borrowing Base or the financial covenants set forth in form and substance satisfactory to Lender; and (vii)Section 10.1;
Appears in 1 contract
Sources: Credit Agreement (LGI Homes, Inc.)
Permitted Indebtedness. Borrower shall not create, incur, assume or suffer to exist any Indebtedness, except the following (collectively, “Permitted Indebtedness”): (ia) Indebtedness under the Loan Documents, (iib) any Indebtedness set forth on Schedule 7.2, 7.2 or arising after the date hereof pursuant to commitments set forth in Schedule 7.2 and any refunding or renewals thereof which do not increase the principal amount of such Indebtedness; (iiic) Capitalized Lease Obligations incurred after the Closing Date and Indebtedness incurred pursuant to purchase money Liens permitted by Section 7.3(v7.3(e); provided, provided that the aggregate amount thereof outstanding amount of such Capitalized Lease Obligations and purchase money indebtedness incurred after the Closing Date at any time shall not exceed $1,000,000, (ivd) Indebtedness in connection with advances made by a stockholder in order to cure any default of the financial covenants set forth on Annex I; provided, however, that such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lender; (v) accounts payable to trade creditors and current operating expenses liabilities (other than for borrowed money) which are not aged more than 120 calendar days from to the billing date or more than 30 days from the due date, in each case extent (i) incurred in the ordinary course of business consistent with past practices and paid within such time period(ii) discharged or satisfied at or before the due date for payment (subject to ordinary course payment practices), unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower’s independent accountants shall have been reserved; , (vie) borrowings incurred in the ordinary course of business and business, (f) other indebtedness in an amount not exceeding $50,000 1,000,000 individually or in the aggregate outstanding at any one time; (g) indemnities under Government Contracts, (h) Subordinated Debt in an amount not to exceed $10,000,000 at any one time outstanding, (i) Indebtedness with respect to financed insurance premiums to the extent not past due, (j) Contingent Obligations undertaken by any Borrower with respect to the Indebtedness of any other Borrower, to the extent such Indebtedness is permitted hereunder as set forth on Schedule 7.2, (k) intercompany debt between or among Borrowers hereto and (l) reimbursement obligations with respect to letters of credit that are secured by cash collateral accounts, provided, however, that in each case under this Section 7.2, all such Indebtedness shall be on an unsecured basis, except for Permitted Liens relating to money borrowed which shall be subordinated in right of repayment and remedies to all of the Obligations and to all of Lender’s the Lenders’ rights pursuant to a subordination agreement in form and substance satisfactory to Lender; Agent. Borrower shall not make prepayments on any existing or future Indebtedness to any Person other than to Agent, for the benefit of Lenders, or to the extent specifically permitted by this Agreement or any subsequent agreement between Borrower, Agent and (vii)Lenders.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (America Service Group Inc /De)
Permitted Indebtedness. Borrower shall not create, incur, assume or suffer to exist any Indebtedness, except the following (collectively, “Permitted Indebtedness”"PERMITTED INDEBTEDNESS"): (i) Indebtedness under the Loan Documents, (ii) Indebtedness under the Fuller Note as in effect on the Closing Date, (iii) any Indebtedness set forth on Schedule o▇ ▇▇▇▇dule 7.2, (iiiiv) Capitalized Lease Obligations (or other Indebtedness in favor of Equipment Lenders) and future obligations under operating leases incurred after the Closing Date and Indebtedness incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that the aggregate outstanding amount of such Capitalized Lease Obligations Obligations, Indebtedness to Equipment Lenders and future obligations under operating leases and purchase money indebtedness incurred after the Closing Date outstanding at any time shall not exceed $1,000,000590,000,000, (ivv) Indebtedness in connection with advances made by a stockholder in order to cure any default of the financial covenants set forth on Annex I; provided, however, that such Indebtedness shall be he on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender’s 's rights pursuant to a subordination agreement in form and substance satisfactory to Lender; and (vvi) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 120 calendar days from the billing date or more than 30 days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower’s 's independent accountants shall have been reserved; (vi) borrowings incurred . Borrower shall not make prepayments on any existing or future Indebtedness to any Person other than to Lender or to the extent specifically permitted by this Agreement or any subsequent agreement between Borrower and Lender. In no event may Borrower make any payments in the ordinary course of business and not exceeding $50,000 individually or in the aggregate outstanding at any one time, provided, however, that such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies to all respect of the Obligations and to all Fuller Note or any Indebtedness set forth on Schedule 7.2 if at the time of Lender’s rights pursuant to such ▇▇▇▇▇nt or after giving effect thereto there shall exist a subordination agreement in form and substance satisfactory to Lender; and (vii)Default or Event of Default.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Western Express Holdings, Inc.)
Permitted Indebtedness. (a) Indebtedness to Lender in connection with the Revolving Credit, Term Loan and Letters of Credit or otherwise pursuant to the Loan Documents; (b) trade payables incurred in the ordinary course of Borrower’s business; (c) purchase money Indebtedness (including Capitalized Lease Obligations) hereafter incurred by Borrower shall not createto finance the purchase of fixed assets; provided that, incur, assume or suffer to exist any Indebtedness, except the following (collectively, “Permitted Indebtedness”): (i) the amount of such Indebtedness under incurred in any fiscal year shall not exceed Two Hundred Thousand Dollars ($200,000) in the Loan Documentsaggregate, (ii) any such Indebtedness set forth on Schedule 7.2, shall not exceed the purchase price of the assets funded and (iii) Capitalized Lease Obligations incurred after no such Indebtedness may be refinanced for a principal amount in excess of the Closing Date and Indebtedness incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that principal amount outstanding at the aggregate outstanding amount time of such Capitalized Lease Obligations and purchase money indebtedness incurred after the Closing Date shall not exceed $1,000,000, refinancing; (ivd) Subordinated Debt; (e)endorsement of instruments or other payment items for deposit; (f) Indebtedness in connection with advances made by a stockholder in order to cure any default consisting of the financial covenants set forth on Annex I; provided, however, that such Indebtedness shall be on an (i) unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lender; (v) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 120 calendar days from the billing date or more than 30 days from the due date, in each case guarantees incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP to appeal bonds; and deemed adequate by (ii) unsecured guarantees of Indebtedness of any other Borrower’s independent accountants shall , to the extent that the Borrower that is obligated under such guaranty could have been reservedincurred such underlying Indebtedness; (vig) borrowings Indebtedness incurred in the ordinary course of business under performance, surety, statutory, or appeal bonds; (h) Indebtedness owed to any Person providing property, casualty, liability, worker’s compensation, health, disability or other employee benefits insurance, or other insurance to any Borrower, so long as the amount of such Indebtedness is not in excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost of, such insurance for the year in which such Indebtedness is incurred and such Indebtedness is outstanding only during such year; (i) the incurrence by any Borrower of Indebtedness under Hedging Agreements that are incurred for the bona fide purpose of hedging the interest rate, commodity, or foreign currency risks associated with Borrowers’ operations and not exceeding for speculative purposes; (j) Indebtedness incurred in the ordinary course of business in respect of credit cards, credit card processing services, debit cards, or cash management services, provided that such Indebtedness shall not exceed Fifty Thousand Dollars ($50,000 individually or 50,000) in the aggregate outstanding at any one time, provided, however, that such ; (k) Indebtedness shall be on an unsecured basis, subordinated in right owed to Lender or any Affiliate of repayment and remedies to all of the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lender; and (vii)l) unsecured Indebtedness owed by one Borrower to another.
Appears in 1 contract
Sources: Loan and Security Agreement (Western Acquisition Ventures Corp.)
Permitted Indebtedness. Neither the Borrower shall not nor any Subsidiary will create, incur, assume incur or suffer to exist any Indebtedness, except except, without duplication and without duplication as to the following Borrower and Subsidiaries:
(collectivelya) The Obligations;
(b) Unsecured Indebtedness existing on the Agreement Date and described on Schedule 7.1(g) attached hereto;
(c) Derivatives Contracts entered into in respect of the Obligations;
(d) Indebtedness of the Borrower owed to a Subsidiary Guarantor, “Permitted Indebtedness”): Indebtedness of a Subsidiary Guarantor owed to the Borrower and Indebtedness of a Subsidiary Guarantor owed to a Subsidiary Guarantor; provided, however, that (a) any Indebtedness of the Borrower owed to a Subsidiary Guarantor is unsecured and subordinated to the Borrower’s Obligations hereunder in a manner satisfactory to the Administrative Agent, and (b) upon any such Subsidiary Guarantor ceasing to be a Subsidiary Guarantor or such Indebtedness being owed to any Person other than the Borrower or a Subsidiary Guarantor, the Borrower or such Subsidiary Guarantor hereunder, as applicable, shall be deemed to have incurred Indebtedness not permitted by this clause (d);
(e) Trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(f) Indebtedness with respect to Letters of Credit;
(g) Indebtedness consisting of Taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of the Borrower’s or any Subsidiary’s business;
(h) Performance bonds, completion bonds, other bonds customarily used by the Borrower in its trade or business, surety and appeal bonds, guarantees of performance and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) Indebtedness arising under the Loan Documents, a guarantee of indebtedness of any Joint Venture (ii) any Indebtedness set forth on Schedule 7.2, (iii) Capitalized Lease Obligations incurred after the Closing Date and Indebtedness incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that such guarantee shall be deemed to be an investment in such Joint Venture and subject to the aggregate outstanding amount limitations in clause (e) of such Capitalized Lease Obligations the definition of Permitted Investments and purchase money indebtedness incurred after the Closing Date shall not exceed $1,000,000, Section 10.1(e));
(ivj) Indebtedness in connection with advances made arising from the honoring by a stockholder bank or other financial institution of a check, draft or similar instrument inadvertently (except in order to cure any default the case of daylight overdrafts) drawn against insufficient funds in the financial covenants set forth on Annex Iordinary course of business; provided, however, that such Indebtedness shall be on an unsecured basis, subordinated is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in right connection with endorsement of repayment and remedies to all of the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lender; (v) accounts payable to trade creditors and current operating expenses (other than instruments for borrowed money) which are not aged more than 120 calendar days from the billing date or more than 30 days from the due date, in each case incurred deposit in the ordinary course of business business;
(l) (i) Capitalized Lease Obligations and paid within (ii) Non-Recourse Indebtedness secured by purchase money Liens on any Property (other than any Borrowing Base Property) hereafter acquired or the assumption of any Lien on Property (other than any Borrowing Base Property) existing at the time of such acquisition (and not created in contemplation of such acquisition), provided that (1) the amount outstanding under clauses (i) and (ii) shall not exceed $500,000 in the aggregate at any time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, (2) with respect thereto as are required by GAAP and deemed adequate by Borrower’s independent accountants to Indebtedness incurred under clause (ii) above, (X) any Property securing such Indebtedness shall have been reserved; (vi) borrowings incurred acquired by the Borrower or any Subsidiary in the ordinary course of its respective business and not exceeding $50,000 individually the Lien on any such Property shall attach to such asset concurrently or in within ninety (90) days after the aggregate outstanding at any one timeacquisition thereof, provided, however, that (Y) the amount of such Indebtedness shall be on an unsecured basisnot exceed such purchase price or cost of any Property securing such Indebtedness, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lender; and (vii)Z) each Lien shall attach only to the Property so acquired;
(m) Intentionally omitted;
Appears in 1 contract
Sources: Credit Agreement (LGI Homes, Inc.)
Permitted Indebtedness. Borrower The Trinidad Obligor shall not create, incur, assume create or incur or suffer to exist any Indebtedness, Indebtedness except the following (collectively, “Permitted Indebtedness”): "TRINIDAD PERMITTED PROJECT INDEBTEDNESS"):
(ia) Indebtedness under the Loan Documents, (ii) any Indebtedness set forth on Schedule 7.2, (iii) Capitalized Lease Obligations incurred after the Closing Date and Indebtedness incurred pursuant to purchase money Liens permitted this Agreement;
(b) Indebtedness incurred to finance in whole or in part the making of capital improvements to the Trinidad Project required to maintain compliance with Applicable Law; PROVIDED that the Independent Engineer shall have certified to the Bond Trustee that:
(i) (x) an Officer's Certificate of the Trinidad Obligor certifying that such Indebtedness is required to make a capital improvement to the Trinidad Project that is required in order to maintain compliance with Applicable Law is reasonable and (y) and that such Indebtedness is the most effective means of making such capital expenditure and, if applicable, completing the Trinidad Project; and
(ii) after giving effect to the incurrence of such Indebtedness, the minimum Projected Debt Service Coverage Ratio for (A) the next four consecutive fiscal quarters, commencing with the quarter in which such Indebtedness is to be incurred, taken as one annual period, and (B) each subsequent fiscal year through the Final Maturity Date for the Securities, will not be less than 1.2 to 1;
(c) Indebtedness incurred to finance in whole or in part the making of capital improvements to the Trinidad Project other than those capital improvements referenced in clause (b) above; PROVIDED that:
(i) an Authorized Officer of the Trinidad Obligor certifies to the Bond Trustee that no default or event of default under any Finance Document has occurred and is continuing or will occur as a result of the incurrence of such Indebtedness;
(ii) the Independent Engineer shall have certified to the Bond Trustee that after giving effect to the incurrence of such Indebtedness, (x) the minimum Projected Debt Service Coverage Ratio for (A) the next four consecutive fiscal quarters commencing with the quarter in which such Indebtedness is to be incurred, taken as one annual period and (B) each subsequent fiscal year through the Final Maturity Date for the Securities, will not be less than 1.5 to 1, and (y) the average Projected Debt Service Coverage Ratio for all succeeding fiscal years until the Final Maturity Date for the Securities will not be less than 1.55 to 1; and
(iii) written confirmation from each Rating Agency then rating the Securities that the incurrence of such Indebtedness will not result in a Ratings Downgrade;
(d) Indebtedness in the form of a working capital facility for the benefit of the Trinidad Project in an aggregate principal amount not to exceed U.S. $3,000,000; PROVIDED that such amount shall include any Indebtedness incurred by Section 7.3(v), provided the Trinidad Project Borrower pursuant SECTION 4.14(d) of the Trinidad Project Loan Agreement; PROVIDED FURTHER that the terms of such facility provide that the aggregate outstanding amount of all loans outstanding thereunder shall be reduced to zero for ten (10) days in each fiscal year;
(e) To the extent such Capitalized Lease Obligations and purchase money indebtedness incurred after obligations would constitute Indebtedness, obligations of the Closing Date shall not exceed $1,000,000, Trinidad Obligor under the Trinidad Project Documents;
(ivf) Indebtedness in connection with advances made by a stockholder in order related to cure any default of the financial covenants set forth on Annex ITrinidad Permitted Project Liens; provided, however, that such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lender; (v) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 120 calendar days from the billing date or more than 30 days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower’s independent accountants shall have been reserved; (vi) borrowings incurred in the ordinary course of business and not exceeding $50,000 individually or in the aggregate outstanding at any one time, provided, however, that such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lender; and (vii)and
Appears in 1 contract
Sources: Loan Agreement (York Research Corp)
Permitted Indebtedness. Borrower shall not create, incur, assume or suffer to exist any Indebtedness, except the following (collectively, “Permitted Indebtedness”"PERMITTED INDEBTEDNESS"): (ia) Indebtedness under the Loan Documents, (iib) any Indebtedness set forth on Schedule 7.2, 7.2 or arising after the date hereof pursuant to commitments set forth in Schedule 7.2 and any refunding or renewals thereof which do not increase the principal amount of such Indebtedness; (iiic) Capitalized Lease Obligations incurred after the Closing Date and Indebtedness incurred pursuant to purchase money Liens permitted by Section 7.3(v7.3(e); provided, provided that the aggregate amount thereof outstanding amount of such Capitalized Lease Obligations and purchase money indebtedness incurred after the Closing Date at any time shall not exceed $1,000,000, (ivd) Indebtedness in connection with advances made by a stockholder in order to cure any default of the financial covenants set forth on Annex I; provided, however, that such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lender; (v) accounts payable to trade creditors and current operating expenses liabilities (other than for borrowed money) which are not aged more than 120 calendar days from to the billing date or more than 30 days from the due date, in each case extent (i) incurred in the ordinary course of business consistent with past practices and paid within such time period(ii) discharged or satisfied at or before the due date for payment (subject to ordinary course payment practices), unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower’s 's independent accountants shall have been reserved; , (vie) borrowings incurred in the ordinary course of business and business, (f) other indebtedness in an amount not exceeding $50,000 1,000,000 individually or in the aggregate outstanding at any one time; (g) indemnities under Government Contracts, (h) Subordinated Debt in an amount not to exceed $10,000,000 at any one time outstanding, (i) Indebtedness with respect to financed insurance premiums to the extent not past due, (j) Contingent Obligations undertaken by any Borrower with respect to the Indebtedness of any other Borrower, to the extent such Indebtedness is permitted hereunder as set forth on Schedule 7.2, (k) intercompany debt between or among Borrowers hereto and (l) reimbursement obligations with respect to letters of credit that are secured by cash collateral accounts, provided, however, that in each case under this Section 7.2, all such Indebtedness (other than the Indebtedness constituted of reimbursement obligations with respect to the Existing Letters of Credit issued by ▇▇▇▇▇ Fargo Foothill) shall be on an unsecured basis, except for Permitted Liens relating to money borrowed which shall be subordinated in right of repayment and remedies to all of the Obligations and to all of Lender’s the Lenders' rights pursuant to a subordination agreement in form and substance satisfactory to Lender; Agent. Borrower shall not make prepayments on any existing or future Indebtedness to any Person other than to Agent, for the benefit of Lenders, or to the extent specifically permitted by this Agreement or any subsequent agreement between Borrower, Agent and (vii)Lenders.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (America Service Group Inc /De)
Permitted Indebtedness. Neither Borrower shall not nor any Subsidiary will create, incur, assume incur or suffer to exist any Indebtedness, except except, without duplication and without duplication as to Borrower and Subsidiaries:
(a) The Obligations;
(b) Unsecured Indebtedness existing on the following Agreement Date and described on Schedule 7.1(g) attached hereto;
(collectivelyc) Derivatives Contracts entered into in respect of the Obligations;
(d) Indebtedness of Borrower owed to a Subsidiary Guarantor, “Permitted Indebtedness”): Indebtedness of a Subsidiary Guarantor owed to Borrower and Indebtedness of a Subsidiary Guarantor owed to a Subsidiary Guarantor; provided, however, that (a) any Indebtedness of Borrower owed to a Subsidiary Guarantor is unsecured and subordinated to Borrower’s Obligations hereunder in a manner satisfactory to Administrative Agent, and (b) upon any such Subsidiary Guarantor ceasing to be a Subsidiary Guarantor or such Indebtedness being owed to any Person other than Borrower or a Subsidiary Guarantor, Borrower or such Subsidiary Guarantor hereunder, as applicable, shall be deemed to have incurred Indebtedness not permitted by this clause (d);
(e) Trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(f) Indebtedness with respect to Letters of Credit;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of Borrower’s or any Subsidiary’s business; NAI-1502661059v7 94
(h) Performance bonds, completion bonds, other bonds customarily used by Borrower in its trade or business, surety and appeal bonds, guarantees of performance and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) Indebtedness arising under the Loan Documents, a guarantee of indebtedness of any Joint Venture (ii) any Indebtedness set forth on Schedule 7.2, (iii) Capitalized Lease Obligations incurred after the Closing Date and Indebtedness incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that such guarantee shall be deemed to be an investment in such Joint Venture and subject to the aggregate outstanding amount limitations in clause (e) of such Capitalized Lease Obligations the definition of Permitted Investments and purchase money indebtedness incurred after the Closing Date shall not exceed $1,000,000, Section 10.1(e));
(ivj) Indebtedness in connection with advances made arising from the honoring by a stockholder bank or other financial institution of a check, draft or similar instrument inadvertently (except in order to cure any default the case of daylight overdrafts) drawn against insufficient funds in the financial covenants set forth on Annex Iordinary course of business; provided, however, that such Indebtedness shall be on an unsecured basis, subordinated is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in right connection with endorsement of repayment and remedies to all of the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lender; (v) accounts payable to trade creditors and current operating expenses (other than instruments for borrowed money) which are not aged more than 120 calendar days from the billing date or more than 30 days from the due date, in each case incurred deposit in the ordinary course of business business;
(l) (i) Capitalized Lease Obligations and paid within (ii) Non-Recourse Indebtedness secured by purchase money Liens on any Property (other than any Borrowing Base Property) hereafter acquired or the assumption of any Lien on Property (other than any Borrowing Base Property) existing at the time of such acquisition (and not created in contemplation of such acquisition), provided that (1) the amount outstanding under clauses (i) and (ii) shall not exceed $500,000 in the aggregate at any time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, (2) with respect thereto as are required by GAAP and deemed adequate by Borrower’s independent accountants to Indebtedness incurred under clause (ii) above, (X) any Property securing such Indebtedness shall have been reserved; (vi) borrowings incurred acquired by Borrower or any Subsidiary in the ordinary course of its respective business and the Lien on any such Property shall attach to such asset concurrently or within ninety (90) days after the acquisition thereof, (Y) the amount of such Indebtedness shall not exceeding exceed such purchase price or cost of any Property securing such Indebtedness, and (Z) each Lien shall attach only to the Property so acquired;
(m) The Subordinated Convertible Notes, provided that (i) the outstanding principal amount of such Indebtedness does not exceed $50,000 individually or 85,000,000 in the aggregate outstanding at any one time, provided(ii) such Indebtedness is unsecured, however(iii) such Indebtedness is subordinate to the Obligations and (iv) such Indebtedness is not guaranteed by any Subsidiary Guarantor unless such guaranty is subordinated to the Guarantied Obligations in a manner satisfactory to Administrative Agent in its sole and absolute discretion (including, without limitation, a subordination agreement);
(n) Other Unsecured Indebtedness, provided that (A) after giving effect thereto, Borrower is in compliance with the financial covenants set forth in Section 10.1, (B) the maturity date of such Indebtedness is at least one (1) year after the Maturity Date, (C) any covenants contained in the documents evidencing such Indebtedness must be no more restrictive, when taken as a whole, than the covenants contained in this Agreement, as determined by Administrative Agent in its sole discretion, and (D) such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies not contain any cross default to all of the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lenderthis Agreement;
(o) CDD Debt; and (vii)and
Appears in 1 contract
Sources: Credit Agreement (LGI Homes, Inc.)
Permitted Indebtedness. Borrower shall not create, incur, assume or suffer to exist any Indebtedness, except the following (collectively, “Permitted Indebtedness”"): (i) Indebtedness under the Loan Documents, (ii) any Indebtedness set forth on Schedule 7.2, (iii) Capitalized Lease Obligations incurred after the Closing Date April 30, 2004 and Indebtedness incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that the aggregate outstanding amount of such Capitalized Lease Obligations and purchase money indebtedness incurred after the Closing Date outstanding at any time shall not exceed $1,000,00075,000, (iv) Indebtedness in connection with advances made by a stockholder in order to cure any default of the financial covenants set forth on Annex I; provided, however, that such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lender; (v) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 120 calendar days from the billing date or more than 30 days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower’s independent accountants shall have been reserved; (vi) borrowings incurred in the ordinary course of business and not exceeding $50,000 10,000 individually or in the aggregate outstanding at any one time, provided, however, that such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lender; and (vii)) Permitted Subordinated Debt or Indebtedness to US Bioservices Corporation as permitted under the Joint Venture Dissolution Consent. Borrower shall not make prepayments on any existing or future Indebtedness in excess of $10,000 to any Person other than to Lender or to the extent specifically permitted by this Agreement or any subsequent agreement between Borrower and Lender.
(h) Section 7.3 of the Agreement, entitled “Permitted Liens” is hereby amended and restated as follows:
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (NationsHealth, Inc.)
Permitted Indebtedness. Borrower shall not create, No Subsidiary will incur, assume create or suffer permit to exist indebtedness to any Indebtedness, person or entity other than Pioneer and the Banks except only the following (collectively, “Permitted Indebtedness”): (i) Indebtedness under the Loan Documents, (ii) any Indebtedness set forth on Schedule 7.2, (iii) Capitalized Lease Obligations incurred after the Closing Date and Indebtedness incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that the aggregate outstanding amount of such Capitalized Lease Obligations and purchase money indebtedness incurred after the Closing Date shall not exceed $1,000,000, (iv) Indebtedness in connection with advances made by a stockholder in order to cure any default of the financial covenants set forth on Annex I; provided, however, that such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lender; (v) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 120 calendar days from the billing date or more than 30 days from the due date, in each case incurred in the ordinary course of each of such Subsidiary’s respective business (the “Permitted Indebtedness”) (i) current trade payables not more than ninety (90) days past due, (ii) lease obligations for real estate, fixtures and paid within equipment, (iii) purchase money obligations for capital expenditures, (iv) Lending License Bonds permitted under this Agreement, and (v) the System Acquisition Agreement. The aggregate amount of all such time periodSubsidiary Permitted Indebtedness, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reservesexcluding real property lease obligations for each Subsidiary, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower’s independent accountants shall have been reserved; not exceed Two Hundred Fifty Thousand Dollars (vi$250,000) borrowings incurred in the ordinary course of business and not exceeding $50,000 individually or in the aggregate outstanding for all Subsidiaries at any one time, provided, however, that the Lending License Bonds permitted hereunder shall not be included in the $250,000 aggregate limitation for Subsidiaries. Pioneer will not incur, create or permit to exist indebtedness to any Person other than the Banks except only the following permitted indebtedness incurred in the ordinary course of Pioneer’s business (the “Pioneer Permitted Indebtedness”)
(i) current trade payables not more than ninety (90) days past due, (ii) lease obligations for real estate, fixtures and equipment, (iii) purchase money obligations for capital expenditures, (iv) Subordinated Indebtedness, (v) Lending License Bonds permitted under this Agreement, and (vi) the amounts due under the System Acquisition Agreement executed or to be executed by Pioneer in connection with the FIS System. The aggregate amount of all such Pioneer Permitted Indebtedness, excluding Subordinated Indebtedness and real property lease obligations, shall not exceed Five Hundred Thousand Dollars ($500,000) in the aggregate for Pioneer at any time,” provided, however, that the Lending License Bonds and the System Acquisition Agreement obligation for the FIS System permitted hereunder shall not be included in the $500,000 aggregate limitation for Pioneer.
1.8 Section 7.4 “Redemption/Guarantees/Advances/Issuance of Stock/Dividend” shall be on an unsecured basis, subordinated deleted in right of repayment its entirety and remedies to all of shall be replaced with the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lender; and (vii)following:
Appears in 1 contract
Sources: Secured Senior Lending Agreement (Pioneer Financial Services Inc)
Permitted Indebtedness. Borrower shall not createIndebtedness to Agent, incur, assume Issuing Bank and Lenders in connection with the Revolving Credit and Letters of Credit or suffer otherwise pursuant to exist any Indebtedness, except the following (collectively, “Permitted Indebtedness”): (i) Indebtedness under the Loan Documents, (ii) any Indebtedness set forth on Schedule 7.2, (iii) Capitalized Lease Obligations incurred after the Closing Date and Indebtedness incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that the aggregate outstanding amount of such Capitalized Lease Obligations and purchase money indebtedness incurred after the Closing Date shall not exceed $1,000,000, (iv) Indebtedness in connection with advances made by a stockholder in order to cure any default of the financial covenants set forth on Annex I; provided, however, that such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lender; (vb) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 120 calendar days from the billing date or more than 30 days from the due date, in each case payables incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower’s independent accountants shall have been reservedor any Subsidiary Guarantor’s business; (vic) borrowings purchase money Indebtedness (including Capitalized Lease Obligations) hereafter incurred by Borrower or any Subsidiary Guarantor to finance the purchase of fixed assets; provided that, (i) such Indebtedness incurred in the ordinary course of business and any fiscal year shall not exceeding exceed $50,000 individually or in the aggregate outstanding at any one time, provided, however, that 1,000,000 (ii) such Indebtedness shall not exceed the purchase price of the assets funded and (iii) no such Indebtedness may be refinanced for a principal amount in excess of the principal amount outstanding at the time of such refinancing; (d) Indebtedness existing on an unsecured basisthe Closing Date that is identified and described on Schedule “1.1(a)” attached hereto and made part hereof; (e) Subordinated Debt; (f) Indebtedness of a Fin 46 Entity which is non-recourse to Borrower or any Subsidiary Guarantor; (g) guarantees by Borrower of Indebtedness of a Subsidiary Guarantor so long as such Indebtedness of such Subsidiary Guarantor constitutes Permitted Indebtedness; (h) Indebtedness under Hedging Agreements; (i) Indebtedness of the Post-Merger Parent that is non-recourse to Borrower or any Subsidiary Guarantor, subordinated in right (j) Indebtedness of repayment ▇▇▇▇▇ Securities Funding that is non-recourse to Borrower or any other Subsidiary Guarantor and remedies (k) Indebtedness related to the ▇▇▇▇ CDS. Subsidiary Guarantor – Alesco Collateral Holdings I, L.P., Alesco Funding, LLC, Alesco Holdings, Ltd., Alesco Loan Holdings, LLC, Alesco Loan Holdings Trust, Alesco TPS Holdings, LLC, Alesco Warehouse Conduit, LLC, Brigadier Capital Management, LLC, Brigadier GP, LLC, ▇▇▇▇ ECM, LLC, ▇▇▇▇▇ & Compagnie, ▇▇▇▇▇ & Company Funding, LLC, ▇▇▇▇▇ & Company Management, LLC, ▇▇▇▇▇ & Company Ventures, LLC, ▇▇▇▇▇ Asia Investments, Ltd., ▇▇▇▇▇ Bros. Acquisitions, ▇▇▇▇▇ Securities Funding LLC (formerly known as Alesco Securities, LLC), Dekania Capital Management, LLC, Dekania Investors, LLC, EuroDekania Management Limited, Strategos Capital Management, LLC, Sunset Financial Holdings, LLC, Sunset Funding, LLC, Sunset Holdings, Ltd., Sunset Investment Vehicle, LLC, Sunset Loan Holdings Trust, Sunset TPS Holdings, LLC, and any other Person who may hereafter guaranty, as surety, all of the Obligations Obligations. Notwithstanding inclusion of each of ▇▇▇▇▇ & Compagnie and EuroDekania Management Limited as a “Subsidiary Guarantor” hereunder, neither of ▇▇▇▇▇ & Compagnie or EuroDekania Management Limited shall be required to all of Lender’s rights pursuant to a subordination agreement in form execute the Surety and substance satisfactory to Lender; and (vii)Guaranty Agreement or Guaranty Security Agreement.
Appears in 1 contract
Permitted Indebtedness. The Borrower shall not, and shall not permit any Subsidiary to, create, incur, assume incur or suffer to exist any Indebtedness, except except:
(a) the following Obligations;
(collectivelyb) [intentionally deleted];the Subordinate Debt, “Permitted Indebtedness”): so long as (i) Indebtedness under the Loan DocumentsSubordinate Debt complies with the Subordinate Debt Requirements, (ii) any Indebtedness set forth on Schedule 7.2the Convertible Debt is paid off in connection with Borrower incurring the Subordinate Debt, (iii) Capitalized Lease Obligations incurred after the Closing Date and Indebtedness incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that the aggregate outstanding principal amount of such Capitalized Lease Obligations and purchase money indebtedness incurred after the Closing Date Subordinate Debt shall not exceed $1,000,000, 70,000,000 at any time and (iv) Borrower complies with Section 10.11 below;
(c) Indebtedness existing on the Agreement Date which Indebtedness is described in connection with advances made by a stockholder Schedule 7.1(g) hereto;
(d) Derivatives Contracts entered into in order to cure any default respect of the financial covenants set forth on Annex IObligations;
(e) Indebtedness of a Borrower owed to another Borrower; provided, however, that such Indebtedness shall be on an is (i) unsecured basis, and (ii) subordinated in right of repayment and remedies to all of the Obligations and to all of Lender’s rights pursuant to Section 13.25 hereof or, if such Indebtedness is evidenced by an instrument, is subordinated to the Obligations pursuant to the terms of such instrument or a subordination agreement in form and substance satisfactory to Lender; (v) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 120 calendar days from the billing date or more than 30 days from the due dateseparate written agreement, in each case case, that is approved by Administrative Agent in its reasonable discretion;
(f) trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by any Borrower’s independent accountants shall have been reserved; business;
(vih) borrowings incurred performance bonds, completion bonds, other bonds customarily used by any Borrower in its trade or business, surety and appeal bonds, guarantees of performance, and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) the Convertible Debt, so long as (1) [intentionally deleted], (2) the Convertible Debt remains unsecured, (3) the terms and not exceeding $50,000 individually conditions of the Convertible Debt are no more restrictive than the terms of this Agreement and (4) UHG complies with Section 10.10 below;
(j) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the aggregate outstanding at any one time, case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(l) so long as no Default or Event of Default exists or would result therefrom at the time incurred, other unsecured and secured debt (including, for the avoidance of doubt, Capitalized Lease Obligations and any Guarantee of such Indebtedness without duplication) (collectively, the “Other Indebtedness”); provided that: (i) the commitment amount of such Other Indebtedness shall not exceed the Maximum Other Indebtedness Amount in the aggregate at any time; (ii) such Other Indebtedness, if secured, is secured by property other than the Collateral, (iii) such Other Indebtedness is not cross-defaulted to this Agreement, (iv) the Fair Market Value of such property that secures such Other Indebtedness, if any, shall be on an unsecured basisno greater than two (2) times the amount of such Other Indebtedness in the aggregate, subordinated in right of repayment and remedies to all determined at the time of the Obligations incurrence thereof, (v) the Borrower shall be in compliance with the financial covenants set forth in Section 10.1 at the time of and immediately after giving effect to all the incurrence of Lender’s rights such Other Indebtedness, and (vi) no covenants under any such Other Indebtedness incurred pursuant to this clause (l) shall be more restrictive, when taken as a subordination agreement whole, than those covenants contained in form and substance satisfactory to Lender; and (vii)this Agreement.
Appears in 1 contract
Permitted Indebtedness. Notice Addresses for Administrative Agent, Issuing Lenders, Swingline Lender and Collateral Agent A Form of Security Agreement B Form of Assignment and Assumption C Form of Compliance Certificate C-1 Form of Exemption Certificate C-2 Form of Exemption Certificate C-3 Form of Exemption Certificate C-4 Form of Exemption Certificate D-1 Form of First Lien/Second Lien Intercreditor Agreement D-2 Form of Terms of Intercreditor (pari passu) E Form of Prepayment Notice F-1 Form of Revolving Loan Note F-2 Form of Term Loan Note F-3 Form of Swingline Note G Form of Guarantor Joinder Agreement H Form of Borrowing and Conversion/Continuation Request I Form of Solvency Certificate J Form of Global Intercompany Note K Form of Co-Borrower shall not createJoinder L Form of Borrower Assignment FIRST LIEN CREDIT AGREEMENT (as amended, incurrestated, assume supplemented or suffer otherwise modified from time to exist any Indebtednesstime in accordance with the terms hereof, except this “Agreement”), dated as of August 1, 2018, among PowerSchool Holdings LLC (f/k/a Severin Holdings, LLC), a Delaware limited liability company (“Holdings”), Severin Acquisition, LLC, a Delaware limited liability company (the following “Top Borrower”), PeopleAdmin, LLC (f/k/a PeopleAdmin, Inc.), a Delaware ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ liability company (the “PA Borrower”), Promachos Holding, Inc., a Delaware corporation (“PeopleAdmin”) and Performance Matters LLC, a Utah limited liability company (“Performance Matters”), certain other Restricted Subsidiaries (this and each other capitalized term used herein without definition having the meaning assigned to such term in Section 1.1) from time to time designated hereunder as Co-Borrowers (together with the Top Borrower, and the PA Borrower, PeopleAdmin and Performance Matters, each a “Borrower” and, collectively, the “Permitted IndebtednessBorrowers”): (i) Indebtedness under the Loan Documents, (ii) any Indebtedness set forth on Schedule 7.2, (iii) Capitalized Lease Obligations incurred after the Closing Date and Indebtedness incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that the aggregate outstanding amount Subsidiary Guarantors from time to time party hereto (including through delivery of such Capitalized Lease Obligations a Guarantor Joinder Agreement in accordance with the terms of this Agreement), the several banks, financial institutions, institutional investors and purchase money indebtedness incurred after other entities from time to time party hereto as lenders (the Closing Date shall not exceed $1,000,000“Lenders”), (iv) Indebtedness in connection with advances made by a stockholder in order the Issuing Lenders from time to cure any default of time party hereto, the financial covenants set forth on Annex I; providedSwingline Lender and Barclays Bank PLC, however, that such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lender; (v) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 120 calendar days from the billing date or more than 30 days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower’s independent accountants shall have been reserved; (vi) borrowings incurred in the ordinary course of business and not exceeding $50,000 individually or in the aggregate outstanding at any one time, provided, however, that such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lender; and (vii)Administrative Agent.
Appears in 1 contract
Sources: Incremental and Refinancing Amendment (Powerschool Holdings, Inc.)
Permitted Indebtedness. Neither Borrower shall not nor any Subsidiary will create, incur, assume incur or suffer to exist any Indebtedness, except except, without duplication and without duplication as to Borrower and Subsidiaries:
(a) The Obligations;
(b) Unsecured Indebtedness existing on the following Agreement Date and described on Schedule 7.1(g) attached hereto;
(collectivelyc) Derivatives Contracts entered into in respect of the Obligations;
(d) Indebtedness of Borrower owed to a Subsidiary Guarantor, “Permitted Indebtedness”): Indebtedness of a Subsidiary Guarantor owed to Borrower and Indebtedness of a Subsidiary Guarantor owed to a Subsidiary Guarantor; provided, however, that (a) any Indebtedness of Borrower owed to a Subsidiary Guarantor is unsecured and subordinated to Borrower’s Obligations hereunder in a manner satisfactory to Administrative Agent, and (b) upon any such Subsidiary Guarantor ceasing to be a Subsidiary Guarantor or such Indebtedness being owed to any Person other than Borrower or a Subsidiary Guarantor, Borrower or such Subsidiary Guarantor hereunder, as applicable, shall be deemed to have incurred Indebtedness not permitted by this clause (d);
(e) Trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(f) Indebtedness with respect to Letters of Credit;
(g) Indebtedness consisting of taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of Borrower’s or any Subsidiary’s business;
(h) Performance bonds, completion bonds, other bonds customarily used by Borrower in its trade or business, surety and appeal bonds, guarantees of performance and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) Indebtedness arising under the Loan Documents, a guarantee of indebtedness of any Joint Venture (ii) any Indebtedness set forth on Schedule 7.2, (iii) Capitalized Lease Obligations incurred after the Closing Date and Indebtedness incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that such guarantee shall be deemed to be an investment in such Joint Venture and subject to the aggregate outstanding amount limitations in clause (e) of such Capitalized Lease Obligations the definition of Permitted Investments and purchase money indebtedness incurred after the Closing Date shall not exceed $1,000,000, Section 10.1(e) hereof);
(ivj) Indebtedness in connection with advances made arising from the honoring by a stockholder bank or other financial institution of a check, draft or similar instrument inadvertently (except in order to cure any default the case of daylight overdrafts) drawn against insufficient funds in the financial covenants set forth on Annex Iordinary course of business; provided, however, that such Indebtedness shall be on an unsecured basis, subordinated is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in right connection with endorsement of repayment and remedies to all of the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lender; (v) accounts payable to trade creditors and current operating expenses (other than instruments for borrowed money) which are not aged more than 120 calendar days from the billing date or more than 30 days from the due date, in each case incurred deposit in the ordinary course of business business;
(l) (i) Capitalized Lease Obligations and paid within (ii) Non-Recourse Indebtedness secured by purchase money Liens on any Property (other than any Borrowing Base Property) hereafter acquired or the assumption of any Lien on Property (other than any Borrowing Base Property) existing at the time of such acquisition (and not created in contemplation of such acquisition), provided that (1) the amount outstanding under clauses (i) and (ii) shall not exceed $500,000 in the aggregate at any time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, (2) with respect thereto as are required by GAAP and deemed adequate by Borrower’s independent accountants to Indebtedness incurred under clause (ii) above, (X) any Property securing such Indebtedness shall have been reserved; (vi) borrowings incurred acquired by Borrower or any Subsidiary in the ordinary course of its respective business and the Lien on any such Property shall attach to such asset concurrently or within ninety (90) days after the acquisition thereof, (Y) the amount of such Indebtedness shall not exceeding exceed such purchase price or cost of any Property securing such Indebtedness, and (Z) each Lien shall attach only to the Property so acquired;
(m) The Subordinated Convertible Notes, provided that (i) the outstanding principal amount of such Indebtedness does not exceed $50,000 individually or 85,000,000 in the aggregate outstanding at any one time, provided, however, that (ii) such Indebtedness shall be on an unsecured basisis unsecured, subordinated in right of repayment and remedies (iii) such Indebtedness is subordinate to all of the Obligations and (iv) such Indebtedness is not guaranteed by any Subsidiary Guarantor unless such guaranty is subordinated to all of Lender’s rights pursuant the Guarantied Obligations in a manner satisfactory to Administrative Agent in its sole and absolute discretion (including, without limitation, a subordination agreement agreement);
(n) Other unsecured Indebtedness, provided that (A) after giving effect thereto, Borrower is in form and substance satisfactory to Lender; compliance with the financial covenants set forth in Section 10.1, (B) the maturity date of such Indebtedness is at least one (1) year after the Maturity Date, (C) any covenants contained in the documents evidencing such indebtedness must be no more restrictive, when taken as a whole, than the covenants contained in this Agreement, as determined by Administrative Agent in its sole discretion, and (vii)D) such indebtedness shall not contain any cross default to this Agreement; and
Appears in 1 contract
Sources: Credit Agreement (LGI Homes, Inc.)
Permitted Indebtedness. Borrower Obligors shall not create, incur, assume or suffer to exist any Indebtedness, except the following (collectively, “"Permitted Indebtedness”"): (i) Indebtedness under the Loan Documents, (ii) any Indebtedness set forth on Schedule 7.2, (iii) Capitalized Lease Obligations incurred after the Closing Date and Indebtedness incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that the aggregate outstanding amount of such Capitalized Lease Obligations and purchase money indebtedness incurred after the Closing Date outstanding at any time shall not exceed $1,000,00050,000, (iv) Indebtedness in connection with advances made by a stockholder in order to cure any default of the financial covenants set forth on Annex I; provided, however, that such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender’s 's rights pursuant to a subordination agreement in form and substance satisfactory to Lender; (v) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 120 calendar days from the billing date or more than 30 days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower’s Obligors' independent accountants shall have been reserved; (vi) borrowings incurred in the ordinary course of business and not exceeding $50,000 25,000 individually or in the aggregate outstanding at any one time, provided, however, that such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender’s 's rights pursuant to a subordination agreement in form and substance satisfactory to LenderLender ; and (vii)) Permitted Subordinated Debt. Obligors shall not make prepayments on any existing or future Indebtedness to any Person other than (i) to Lender, (ii) to the extent permitted by the Subordination Agreement, or (iii) to the extent specifically permitted by this Agreement or any subsequent agreement between Obligors and Lender.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Sunset Brands Inc)
Permitted Indebtedness. Neither the Borrower shall not nor any Subsidiary will create, incur, assume incur or suffer to exist any Indebtedness, except except, without duplication and without duplication as to the following Borrower and Subsidiaries:
(collectivelya) The Obligations;
(b) Unsecured Indebtedness existing on the Agreement Date and described on Schedule 7.1(g) attached hereto;
(c) Derivatives Contracts entered into in respect of the Obligations;
(d) Indebtedness of the Borrower owed to a Subsidiary Guarantor, “Permitted Indebtedness”): Indebtedness of a Subsidiary Guarantor owed to the Borrower and Indebtedness of a Subsidiary Guarantor owed to a Subsidiary Guarantor; provided, however, that (a) any Indebtedness of the Borrower owed to a Subsidiary Guarantor is unsecured and subordinated to the Borrower’s Obligations hereunder in a manner satisfactory to the Administrative Agent, and (b) upon any such Subsidiary Guarantor ceasing to be a Subsidiary Guarantor or such Indebtedness being owed to any Person other than the Borrower or a Subsidiary Guarantor, the Borrower or such Subsidiary Guarantor hereunder, as applicable, shall be deemed to have incurred Indebtedness not permitted by this clause (d);
(e) Trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(f) Indebtedness with respect to Letters of Credit;
(g) Indebtedness consisting of Taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of the Borrower’s or any Subsidiary’s business;
(h) Performance bonds, completion bonds, other bonds customarily used by the Borrower in its trade or business, surety and appeal bonds, guarantees of performance and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) Indebtedness arising under the Loan Documents, a guarantee of indebtedness of any Joint Venture (ii) any Indebtedness set forth on Schedule 7.2, (iii) Capitalized Lease Obligations incurred after the Closing Date and Indebtedness incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that such guarantee shall be deemed to be an investment in such Joint Venture and subject to the aggregate outstanding amount limitations in clause (e) of such Capitalized Lease Obligations the definition of Permitted Investments and purchase money indebtedness incurred after the Closing Date shall not exceed $1,000,000, Section 10.1(e));
(ivj) Indebtedness in connection with advances made arising from the honoring by a stockholder bank or other financial institution of a check, draft or similar instrument inadvertently (except in order to cure any default the case of daylight overdrafts) drawn against insufficient funds in the financial covenants set forth on Annex Iordinary course of business; provided, however, that such Indebtedness shall be on an unsecured basis, subordinated is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in right connection with endorsement of repayment and remedies to all of the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lender; (v) accounts payable to trade creditors and current operating expenses (other than instruments for borrowed money) which are not aged more than 120 calendar days from the billing date or more than 30 days from the due date, in each case incurred deposit in the ordinary course of business business;
(l) (i) Capitalized Lease Obligations and paid within (ii) Non-Recourse Indebtedness secured by purchase money Liens on any Property (other than any Borrowing Base Property) hereafter acquired or the assumption of any Lien on Property (other than any Borrowing Base Property) existing at the time of such acquisition (and not created in contemplation of such acquisition), provided that (1) the amount outstanding under clauses (i) and (ii) shall not exceed $500,000 in the aggregate at any time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, (2) with respect thereto as are required by GAAP and deemed adequate by Borrower’s independent accountants to Indebtedness incurred under clause (ii) above, (X) any Property securing such Indebtedness shall have been reserved; (vi) borrowings incurred acquired by the Borrower or any Subsidiary in the ordinary course of its respective business and the Lien on any such Property shall attach to such asset concurrently or within ninety (90) days after the acquisition thereof, (Y) the amount of such Indebtedness shall not exceeding exceed such purchase price or cost of any Property securing such Indebtedness, and (Z) each Lien shall attach only to the Property so acquired;
(m) The Convertible Notes, provided that (i) the outstanding principal amount of such Indebtedness does not exceed $50,000 individually or 69,962,000 in the aggregate outstanding at any time and (ii) such Indebtedness is unsecuredIntentionally omitted;
(n) Other Unsecured Indebtedness, provided that (A) after giving effect thereto, the Borrower is in compliance with the financial covenants set forth in Section 10.1, (B) the maturity date of such Indebtedness is at least one time(1) year after the Maturity Date, provided(C) any covenants contained in the documents evidencing such Indebtedness must be no more restrictive, howeverwhen taken as a whole, that than the covenants contained in this Agreement, as determined by the Administrative Agent in its sole discretion, and (D) such Indebtedness shall be on an unsecured basisnot contain any cross default to this Agreement;
(o) CDD Debt;
(p) Permitted Deferred Purchase Price Debt, subordinated in right provided that the outstanding principal amount of repayment such Indebtedness does not exceed $25,000,000 at any time; and
(q) Senior Notes Indebtedness, provided that (A) after giving pro forma effect to the issuance of such Senior Notes Indebtedness and remedies to all the use of proceeds therefrom as of the Obligations end of the most recently ended fiscal quarter, the Borrower is in compliance with the financial covenants set forth in Section 10.1, (B) the maturity date of such Senior Notes Indebtedness is at least ninety-one (91) days after the Maturity Date, (C) such Senior Notes Indebtedness and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lender; Senior Notes Indenture do not contain any financial maintenance covenants, and (viiD) the Borrower has delivered to the Administrative Agent a certificate of a Responsible Officer certifying to the compliance with clauses (A), (B), and (C) above, and (E) concurrently with the issuance thereof, the Borrower shall have delivered an opinion of counsel (subject to customary exceptions, qualifications and limitations) to the Borrower and the Guarantors, who may be an employee of or counsel to the Borrower and the Guarantors, addressed to the Administrative Agent and the Lenders, covering (i)to the effect that the issuance of such Senior Notes Indebtedness does not conflict with or violate the terms of this Agreement, the Notes, or the Subsidiary Guaranties, the Convertible Notes or the Convertible Notes Indenture and (ii) any supplemental indenture entered into in connection with the issuance of such Senior Notes Indebtedness evidencing an amendment of, or supplement to, the Convertible Notes Indenture has been duly authorized, executed and delivered by the Borrower and is valid, binding and enforceable against the Borrower..
Appears in 1 contract
Sources: Credit Agreement (LGI Homes, Inc.)
Permitted Indebtedness. The Borrower shall will not, and will not createpermit any Restricted Subsidiary to, incur, create, issue, assume or suffer permit to exist any Indebtedness, except Indebtedness for Borrowed Money other than:
(a) the following Obligations hereunder and the Subsidiary Guaranty Agreement relating thereto;
(collectively, “Permitted Indebtedness”): b) unsecured Subordinated Debt;
(ic) debt incurred in connection with permitted Fixed Asset Financing;
(d) unsecured Indebtedness under for Borrowed Money owing between the Loan Documents, (ii) any Indebtedness set forth on Schedule 7.2, (iii) Capitalized Lease Obligations incurred after Borrower and its Restricted Subsidiaries in the Closing Date and Indebtedness incurred pursuant to purchase money Liens permitted by Section 7.3(v)ordinary course of business, provided that the aggregate outstanding amount of such Capitalized Lease Obligations and purchase money indebtedness incurred after Indebtedness for Borrowed Money at any one time owing either by or to the Closing Date Insurance Subsidiary shall not exceed $1,000,000, ;
(ive) the 2021 Unsecured Bond Debt;
(f) Indebtedness arising from or incurred in connection with advances made a Permitted Facility or refinancing thereof; provided that no portion of such Indebtedness or any other obligation (contingent or otherwise) in connection therewith (i) is guaranteed by a stockholder the Borrower or any Restricted Subsidiary other than pursuant to Standard Securitization Undertakings, (ii) is recourse to or obligates the Borrower or any Restricted Subsidiary in order to cure any default way other than as the seller of the financial covenants set forth on Annex I; providedrelevant Receivables other than pursuant to Standard Securitization Undertakings, however, that such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies to all or (iii) subjects any property of the Obligations and Borrower or any Restricted Subsidiary, directly or indirectly, contingently or otherwise, to all the satisfaction thereof, other than as the seller of Lender’s rights Receivables being financed pursuant to a subordination agreement in form and substance satisfactory Standard Securitization Undertakings; and
(g) other unsecured Indebtedness for Borrowed Money owing to Lender; (v) accounts payable to trade creditors and current operating expenses any Person (other than to the Borrower or another Restricted Subsidiary) in an aggregate amount for borrowed money) which are not aged more than 120 calendar days from the billing date or more than 30 days from the due date, in each case incurred in the ordinary course of business Borrower and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower’s independent accountants shall have been reserved; (vi) borrowings incurred in the ordinary course of business and all Restricted Subsidiaries not exceeding $50,000 individually or in the aggregate outstanding 10,000,000 at any one time, provided, however, that such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lender; and (vii)time outstanding.
Appears in 1 contract
Permitted Indebtedness. Borrower shall not create, incur, assume or suffer to exist any Indebtedness, except Any of the following (collectively, “Permitted Indebtedness”): following: (i) Indebtedness under the Loan Documents, Obligations; (ii) any Indebtedness set forth (other than Obligations) existing as of the date of this Credit Agreement or as disclosed in the 2010 Annual Report or as otherwise disclosed on Schedule 7.2, 6.1 hereto but not any increase in the principal amounts thereof nor any renewals or refinancings thereof; (iii) Capitalized Lease Obligations incurred after Indebtedness for taxes, assessments or governmental charges to the Closing Date and Indebtedness incurred pursuant extent that payment therefore shall at the time not be required to purchase money Liens permitted by be made in accordance with Section 7.3(v), provided that the aggregate outstanding amount of such Capitalized Lease Obligations and purchase money indebtedness incurred after the Closing Date shall not exceed $1,000,000, 5.4; (iv) Indebtedness current trade liabilities on open account for the purchase price of services, materials and supplies incurred by the Borrower or its Subsidiaries in connection with advances made by the ordinary course of business (not as a stockholder in order to cure any default result of the financial covenants set forth on Annex I; providedborrowing), however, that so long as all of such open account Indebtedness shall be promptly paid and discharged when due or in conformity with customary trade terms and practices, except for any such open account Indebtedness which is being contested in good faith by the Borrower or its Subsidiaries, as to which adequate reserves required by GAAP have been established and are being maintained and as to which no Lien has been placed on an unsecured basis, subordinated in right of repayment and remedies to all any property of the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to LenderBorrower or its Subsidiaries; (v) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 120 calendar days from the billing date or more than 30 days from the due date, in each case Indebtedness incurred in the ordinary course of business business, including asset securitization facilities and paid within letters of credit not issued under this Credit Agreement, and renewals and refinancings thereof, provided that such Indebtedness under this clause (v) does not exceed $20,000,000 in the aggregate at any time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower’s independent accountants shall have been reservedoutstanding; (vi) borrowings incurred in Guarantees by the ordinary course Borrower of business Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (i) the Indebtedness so Guaranteed is Permitted Indebtedness, (ii) Guarantees by the Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not exceeding $50,000 individually or in the aggregate outstanding at any one time, provided, however, that such Indebtedness a Loan Party shall be on an unsecured basis, subject to Section 6.4 and (iii) Guarantees permitted under this clause (vi) shall be subordinated in right of repayment and remedies to all the Secured Obligations of the Obligations and applicable Subsidiary on the same terms as the Indebtedness so Guaranteed is subordinated to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lenderthe Secured Obligations; and (vii)) Indebtedness existing by and among the Borrower and its Subsidiaries as set forth in Schedule 3.18 annexed hereto or as otherwise disclosed in the 2010 Annual Report.
Appears in 1 contract
Sources: Credit Agreement (Virtusa Corp)
Permitted Indebtedness. Borrower Guarantor shall not create, incur, assume or suffer to exist any IndebtednessIndebtedness for Borrowed Money, except the following (collectively, “Permitted Indebtedness”): "PERMITTED INDEBTEDNESS"):
(ia) Indebtedness under the Loan Documents or the Guarantor Revolving Credit Loan Documents, ; (iib) any Indebtedness set forth on Schedule 7.2SCHEDULE 5.3.2 and any Indebtedness which refinances or replaces such Indebtedness to the extent such refinanced Indebtedness does not increase the total principal amount thereof, extend the maturity date, accelerate the amortization or is otherwise on terms and conditions which are not materially more onerous to Guarantor (iii"PERMITTED REFINANCED INDEBTEDNESS"); (c) (i) Capitalized Lease Obligations incurred after the Closing Date and Indebtedness incurred pursuant to purchase money Liens permitted by Section 7.3(v)5.3.3(v) and any Permitted Refinanced Indebtedness with respect thereto, provided that the aggregate amount thereof outstanding amount of such Capitalized Lease Obligations and purchase money indebtedness incurred after the Closing Date at any time shall not exceed $1,000,000, 5,000,000; (ivii) Indebtedness on a non-recourse (other than customary carve-outs for non-recourse financings) basis to any assets of Guarantor other than the asset or assets that are collateral securing such Indebtedness and which is secured by a Lien permitted pursuant to Section 5.3.3(v) and any Permitted Refinancing Indebtedness with respect thereto and (iii) Indebtedness incurred in connection with the Eureka Transaction; provided that the aggregate amount outstanding under at any time under Section 5.3.2(c)(ii) plus Section 5.3.2(c)(iii) shall not exceed $30,000,000; (d) Indebtedness in connection with advances made by a stockholder in order to cure any default of the financial covenants set forth on Annex I; provided, however, that such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations Debt and to all of Lender’s 's rights pursuant to a subordination agreement and in form and substance reasonably satisfactory to Lender; (v) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 120 calendar days from the billing date or more than 30 days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower’s independent accountants shall have been reserved; (vie) borrowings incurred in the ordinary course of business and not exceeding $50,000 10,000,000 individually or in the aggregate outstanding at any one time, ; provided, however, that such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations Debt and to all of Lender’s 's rights pursuant to a subordination agreement and in form and substance satisfactory to Lender; (f) Subordinated Debt, provided, however, the aggregate principal amount of Subordinated Debt (i) evidenced by the Indenture and the Indenture Notes and any Permitted Refinanced Indebtedness with respect thereto shall not exceed $106,761,608, and (vii)ii) evidenced by the Bergen Note and any Permitted Refinanced Indebtedness with respect thereto shall not exceed $1,237,880, (i) Indebtedness constituting Priority Claims; (j) Indebtedness in respect of insurance premiums payable to the Insurance Subsidiary in an aggregate amount not to exceed $10,000,000 and (k) additional unsecured Indebtedness in the ordinary course of business in an aggregate amount not to exceed $2,000,000. Notwithstanding anything in this Section 5.3.2 or this Agreement to the contrary, the aggregate amount of Indebtedness for Borrowed Money of Guarantor on a Consolidated Basis, exclusive of the Obligations (as defined in the Revolving Loan Documents) shall not exceed $255,000,000 in the aggregate.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Skilled Healthcare Group Inc)
Permitted Indebtedness. Neither the Borrower shall not nor any Subsidiary will create, incur, assume incur or suffer to exist any Indebtedness, except except, without duplication and without duplication as to the following Borrower and Subsidiaries:
(collectivelya) The Obligations;
(b) Unsecured Indebtedness existing on the Agreement Date and described on Schedule 7.1(g) attached hereto;
(c) Derivatives Contracts entered into in respect of the Obligations;
(d) Indebtedness of the Borrower owed to a Subsidiary Guarantor, “Permitted Indebtedness”): Indebtedness of a Subsidiary Guarantor owed to the Borrower and Indebtedness of a Subsidiary Guarantor owed to a Subsidiary Guarantor; provided, however, that (a) any Indebtedness of the Borrower owed to a Subsidiary Guarantor is unsecured and subordinated to the Borrower’s Obligations hereunder in a manner satisfactory to the Administrative Agent, and (b) upon any such Subsidiary Guarantor ceasing to be a Subsidiary Guarantor or such Indebtedness being owed to any Person other than the Borrower or a Subsidiary Guarantor, the Borrower or such Subsidiary Guarantor hereunder, as applicable, shall be deemed to have incurred Indebtedness not permitted by this clause (d);
(e) Trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(f) Indebtedness with respect to Letters of Credit;
(g) Indebtedness consisting of Taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of the Borrower’s or any Subsidiary’s business;
(h) Performance bonds, completion bonds, other bonds customarily used by the Borrower in its trade or business, surety and appeal bonds, guarantees of performance and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) Indebtedness arising under the Loan Documents, a guarantee of indebtedness of any Joint Venture (ii) any Indebtedness set forth on Schedule 7.2, (iii) Capitalized Lease Obligations incurred after the Closing Date and Indebtedness incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that such guarantee shall be deemed to be an investment in such Joint Venture and subject to the aggregate outstanding amount limitations in clause (e) of such Capitalized Lease Obligations the definition of Permitted Investments and purchase money indebtedness incurred after the Closing Date shall not exceed $1,000,000, Section 10.1(e));
(ivj) Indebtedness in connection with advances made arising from the honoring by a stockholder bank or other financial institution of a check, draft or similar instrument inadvertently (except in order to cure any default the case of daylight overdrafts) drawn against insufficient funds in the financial covenants set forth on Annex Iordinary course of business; provided, however, that such Indebtedness shall be on an unsecured basis, subordinated is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in right connection with endorsement of repayment and remedies to all of the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lender; (v) accounts payable to trade creditors and current operating expenses (other than instruments for borrowed money) which are not aged more than 120 calendar days from the billing date or more than 30 days from the due date, in each case incurred deposit in the ordinary course of business business;
(l) (i) Capitalized Lease Obligations and paid within (ii) Non-Recourse Indebtedness secured by purchase money Liens on any Property (other than any Borrowing Base Property) hereafter acquired or the assumption of any Lien on Property (other than any Borrowing Base Property) existing at the time of such acquisition (and not created in contemplation of such acquisition), provided that (1) the amount outstanding under clauses (i) and (ii) shall not exceed the Threshold Amount in the aggregate at any time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, (2) with respect thereto as are required by GAAP and deemed adequate by Borrower’s independent accountants to Indebtedness incurred under clause (ii) above, (X) any Property securing such Indebtedness shall have been reserved; (vi) borrowings incurred acquired by the Borrower or any Subsidiary in the ordinary course of its respective business and not exceeding $50,000 individually the Lien on any such Property shall attach to such asset concurrently or in within ninety (90) days after the aggregate outstanding at any one timeacquisition thereof, provided, however, that (Y) the amount of such Indebtedness shall be on an unsecured basisnot exceed such purchase price or cost of any Property securing such Indebtedness, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lender; and (vii)Z) each Lien shall attach only to the Property so acquired;
(m) Intentionally omitted;
Appears in 1 contract
Sources: Credit Agreement (LGI Homes, Inc.)
Permitted Indebtedness. Neither the Borrower shall not nor any Subsidiary will create, incur, assume incur or suffer to exist any Indebtedness, except except, without duplication and without duplication as to the following Borrower and Subsidiaries:
(collectivelya) The Obligations;
(b) Unsecured Indebtedness existing on the FourthSixth Amendment Effective Date and described on Schedule 7.1(g) attached hereto;
(c) Derivatives Contracts entered into in respect of the Obligations;
(d) Indebtedness of the Borrower owed to a Subsidiary Guarantor, “Permitted Indebtedness”): Indebtedness of a Subsidiary Guarantor owed to the Borrower and Indebtedness of a Subsidiary Guarantor owed to a Subsidiary Guarantor; provided, however, that (a) any Indebtedness of the Borrower owed to a Subsidiary Guarantor is unsecured and subordinated to the Borrower’s Obligations hereunder in a manner satisfactory to the Administrative Agent, and (b) upon any such Subsidiary Guarantor ceasing to be a Subsidiary Guarantor or such Indebtedness being owed to any Person other than the Borrower or a Subsidiary Guarantor, the Borrower or such Subsidiary Guarantor hereunder, as applicable, shall be deemed to have incurred Indebtedness not permitted by this clause (d);
(e) Trade accounts payable and accrued expenses arising or occurring in the ordinary course of business;
(f) Indebtedness with respect to Letters of Credit;
(g) Indebtedness consisting of Taxes payable, and obligations in respect of customer deposits, all to the extent incurred in the ordinary course of the Borrower’s or any Subsidiary’s business;
(h) Performance bonds, completion bonds, other bonds customarily used by the Borrower in its trade or business, surety and appeal bonds, guarantees of performance and guarantees of Indebtedness of a special district entered into in the ordinary course of business (in each case other than for an obligation for money borrowed);
(i) Indebtedness arising under the Loan Documents, a guarantee of indebtedness of any Joint Venture (ii) any Indebtedness set forth on Schedule 7.2, (iii) Capitalized Lease Obligations incurred after the Closing Date and Indebtedness incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that such guarantee shall be deemed to be an investment in such Joint Venture and subject to the aggregate outstanding amount limitations in clause (e) of such Capitalized Lease Obligations the definition of Permitted Investments and purchase money indebtedness incurred after the Closing Date shall not exceed $1,000,000, Section 10.1(e));
(ivj) Indebtedness in connection with advances made arising from the honoring by a stockholder bank or other financial institution of a check, draft or similar instrument inadvertently (except in order to cure any default the case of daylight overdrafts) drawn against insufficient funds in the financial covenants set forth on Annex Iordinary course of business; provided, however, that such Indebtedness shall be on an unsecured basis, subordinated is extinguished within five (5) Business Days of incurrence;
(k) Indebtedness arising in right connection with endorsement of repayment and remedies to all of the Obligations and to all of Lender’s rights pursuant to a subordination agreement in form and substance satisfactory to Lender; (v) accounts payable to trade creditors and current operating expenses (other than instruments for borrowed money) which are not aged more than 120 calendar days from the billing date or more than 30 days from the due date, in each case incurred deposit in the ordinary course of business business;
(l) (i) Capitalized Lease Obligations and paid within (ii) Non-Recourse Indebtedness secured by purchase money Liens on any Property (other than any Borrowing Base Property) hereafter acquired or the assumption of any Lien on Property (other than any Borrowing Base Property) existing at the time of such acquisition (and not created in contemplation of such acquisition), provided that (1) the amount outstanding under clauses (i) and (ii) shall not exceed the Threshold Amount in the aggregate at any time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, (2) with respect thereto as are required by GAAP and deemed adequate by Borrower’s independent accountants to Indebtedness incurred under clause (ii) above, (X) any Property securing such Indebtedness shall have been reserved; (vi) borrowings incurred acquired by the Borrower or any Subsidiary in the ordinary course of its respective business and the Lien on any such Property shall attach to such asset concurrently or within ninety (90) days after the acquisition thereof, (Y) the amount of such Indebtedness shall not exceeding exceed such purchase price or cost of any Property securing such Indebtedness, and (Z) each Lien shall attach only to the Property so acquired;
(m) Indebtedness with respect to letters of credit (other than Letters of Credit); provided that (i) the aggregate face amount of such letters of credit does not exceed $50,000 individually 10,000,000 at any time, (ii) such Indebtedness is unsecured or cash-secured and (iii) if cash-secured, the cash used to secure such Indebtedness is excluded (to the extent otherwise included) from the calculations of the Borrowing Base or the financial covenants set forth in Section 10.1;
(n) Other Unsecured Indebtedness, provided that (A) after giving effect thereto, the Borrower is in compliance with the financial covenants set forth in Section 10.1, (B) the maturity date of such Indebtedness is at least one (1) year after the Maturity Date, (C) any covenants contained in the documents evidencing such Indebtedness must be no more restrictive, when taken as a whole, than the covenants contained in this Agreement, as determined by the Administrative Agent in its sole discretion, and (D) such Indebtedness shall not contain any cross default to this Agreement;
(o) CDD Debt;
(p) Permitted Deferred Purchase Price Debt, provided that the outstanding principal amount of such Indebtedness does not exceed $25,000,000 at any time;
(q) Senior Notes Indebtedness, provided that (A) after giving pro forma effect to the issuance of such Senior Notes Indebtedness and the use of proceeds therefrom as of the end of the most recently ended fiscal quarter, the Borrower is in compliance with the financial covenants set forth in Section 10.1, (B) the maturity date of such Senior Notes Indebtedness is at least ninety-one (91) days after the Maturity Date, (C) such Senior Notes Indebtedness and Senior Notes Indenture do not contain any financial maintenance covenants, and (D) the Borrower has delivered to the Administrative Agent a certificate of a Responsible Officer certifying to the compliance with clauses (A), (B), and (C) above, and (E) concurrently with the issuance thereof, the Borrower shall have delivered an opinion of counsel (subject to customary exceptions, qualifications and limitations) to the Borrower and the Guarantors, who may be an employee of or counsel to the Borrower and the Guarantors, addressed to the Administrative Agent and the Lenders, to the effect that the issuance of such Senior Notes Indebtedness does not conflict with or violate the terms of this Agreement, the Notes, or the Subsidiary Guaranties; and
(r) Other secured Indebtedness (which, for the avoidance of doubt, excludes the Obligations) that does not in the aggregate outstanding at exceed six percent (6%) of Tangible Net Worth determined as of the last day of the immediately preceding calendar quarter, so long as (A) any one timesecured permitted Indebtedness (excluding the Obligations) incurred pursuant to this clause (r) shall not be secured by Property constituting Borrowing Base Property, provided, however, that (B) any such Indebtedness incurred pursuant to this clause (r) shall be on an unsecured basispermitted under the Senior Notes Indenture, subordinated in right of repayment (C) any such Indebtedness incurred pursuant to this clause (r) shall not be guaranteed by Borrower or any Subsidiary Guarantor, and remedies to all (D) the Fair Market Value of the Obligations and to all of Lender’s rights Property that secures such Indebtedness (excluding the Obligations) incurred pursuant to a subordination agreement in form and substance satisfactory to Lender; and this clause (vii)r) shall not exceed two times the amount of such Indebtedness, determined at the time of the incurrence thereof.
Appears in 1 contract
Sources: Sixth Amendment to Fifth Amended and Restated Credit Agreement (LGI Homes, Inc.)